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  1. #51
    Reigning Bologna Princess Rajah's Avatar
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    Quote Originally Posted by InaF3157 View Post
    What I am curious about is: what is the purpose of empathy here or how will it derail or enhance the decision-making? The way it's been presented, it sounds like it is meant to attenuate or sideline what the law is when the outcome doesn't warm the cockles of our hearts. Perhaps the "empathy first" people should market it better.
    I don't know that "empathy" is the word I'd choose, but judges often consider the facts of a situation - the whole situation - and refuse to apply a one-size-fits-all law. Same goes when it comes to sentencing - the whole of the situation is considered.

    When laws are applied without considering the situation, it can often leave us feeling unsettled. The Genarlow Wilson case is an excellent example of this.


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  2. #52
    now! in shell form INA's Avatar
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    Quote Originally Posted by Rajah View Post
    I don't know that "empathy" is the word I'd choose, but judges often consider the facts of a situation - the whole situation - and refuse to apply a one-size-fits-all law. Same goes when it comes to sentencing - the whole of the situation is considered.

    When laws are applied without considering the situation, it can often leave us feeling unsettled. The Genarlow Wilson case is an excellent example of this.
    I don't mind being unsettled if it means we get something better at the end of it. Take the Genarlow Wilson case. The outcome was that the legislature amended the law because of that "will of the people" that you dread so much and then used another legal hook to pull him out of prison.

    Instead of having judges jump in and apply their selective empathy, the judge applied arguably bad law to get the arguably shady result and then the democratic process got rid of the law, instead of having it sit on the books to derail future defendants.
    "Empathy" itself doesn't get us very far. For all we know, the judge may have had empathy for the prosecutor's situation or for the girl's family that caused him to mete out a sentence some consider excessive. And what would pro-choice people think of a judge "empathetic" to constituents other agitating on behalf of an unborn child who object to the woman's exercise of state law that would otherwise deem their input irrelevant?
    Asking someone to look at the totality of circumstances is fine, but that's not empathy. It's common sense.

  3. #53
    Reigning Bologna Princess Rajah's Avatar
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    Quote Originally Posted by InaF3157 View Post
    I don't mind being unsettled if it means we get something better at the end of it. Take the Genarlow Wilson case. The outcome was that the legislature amended the law because of that "will of the people" that you dread so much and then used another legal hook to pull him out of prison.

    Instead of having judges jump in and apply their selective empathy, the judge applied arguably bad law to get the arguably shady result and then the democratic process got rid of the law, instead of having it sit on the books to derail future defendants.
    "Empathy" itself doesn't get us very far. For all we know, the judge may have had empathy for the prosecutor's situation or for the girl's family that caused him to mete out a sentence some consider excessive. And what would pro-choice people think of a judge "empathetic" to constituents other agitating on behalf of an unborn child who object to the woman's exercise of state law that would otherwise deem their input irrelevant?
    Asking someone to look at the totality of circumstances is fine, but that's not empathy. It's common sense.
    Didn't I already say "empathy" isn't the appropriate word? Why do you insist on continuing to use it?


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  4. #54
    now! in shell form INA's Avatar
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    Ah, I see. Empathy ejected, then, though Obama sounds more wedded to it. He's used the word repeatedly in enumerating judicial qualities he finds important.
    I think I still used "empathy" because what is suggested still sounds like something akin to empathy in that judges distort application in order to reach results contrary to legal dictates.

  5. #55
    Reigning Bologna Princess Rajah's Avatar
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    Quote Originally Posted by InaF3157 View Post
    Ah, I see. Empathy ejected, then, though Obama sounds more wedded to it. He's used the word repeatedly in enumerating judicial qualities he finds important.
    I think I still used "empathy" because what is suggested still sounds like something akin to empathy in that judges distort application in order to reach results contrary to legal dictates.
    You really think they're doing this?


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  6. #56
    now! in shell form INA's Avatar
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    Quote Originally Posted by Rajah View Post
    You really think they're doing this?
    It's not unprecedented. That's where cries of activism come from. Sometimes we like the outcome. Other times we don't. They do not as a rule, and they shouldn't be encouraged to, either. The more they get ahead of themselves, the more they erode their legitimacy.

    Why would you recommend they do so? I take it from the genarlow reference that you think they should.

  7. #57
    Reigning Bologna Princess Rajah's Avatar
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    Quote Originally Posted by InaF3157 View Post
    It's not unprecedented. That's where cries of activism come from. Sometimes we like the outcome. Other times we don't. They do not as a rule, and they shouldn't be encouraged to, either. The more they get ahead of themselves, the more they erode their legitimacy.

    Why would you recommend they do so? I take it from the genarlow reference that you think they should.
    I've already explained what I think the role of judges are.

    So let me ask you this. When the Supreme Court held desegregation unconstitutional in Brown v. Board of Education, was this an abuse of judicial power?


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  8. #58
    Senior Member lowtech redneck's Avatar
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    Quote Originally Posted by Rajah View Post
    You really think they're doing this?
    Quite often in absolute terms, though not so often as a percentage of total rulings (presumably because they more or less agree with most existing laws, anyway, and besides that they are still socialized to value the rule of law, even as they are simultaneously socialized to believe in a legal philosophy that conflicts with and increasingly corrodes the same). I don't think most jurist are ill-intentioned in doing this, in their own minds they're just trying to honor what they arbitrarily percieve to be the "spirit" of the law.

    Well-intentioned or not, the end result is a judiciary that quite often dictates policy rather than ensure that the Executive and Legislative branches do not violate existing laws/Constitutional parameters.

    YouTube - Leading Supreme Court Candidate: Courts Make Policy

  9. #59
    Reigning Bologna Princess Rajah's Avatar
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    Do you really think judges, who are ostensibly human, have the ability to be completely objective? For that matter, does anyone? I'd think not.


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  10. #60
    Reigning Bologna Princess Rajah's Avatar
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    I'll clarify. I left it open for debate, on purpose, but I'm getting ready to head out of here soon.

    Judges are human. They aren't perfect; they are fallible. They typically do a really good job applying the law as impartially as they are able, but it's not a perfect process. And typically the law gives them guidelines but leaves some flexibility. It's when the law is overly strict we begin to feel a little anxious about it.


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