Posted by Ilya Somin:
My LA Times Debate with Erwin Chemerinsky, Part 2:
http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243548618
The second part of my LA Times debate with Erwin Chemerinsky over the
Sotomayor nomination is now available, [1]here. In this series of
posts, we consider the pros and cons of judicial reliance on "empathy"
in making legal decisions:
President Obama has come under fire for his "empathy" standard in
selecting a Supreme Court nominee. Is there a conflict between
considering the real-world implications of Supreme Court decisions
and staying true to the intent of the Constitution and federal law?
I argue that relying on empathy is likely to reduce the quality of
judicial decision-making and bias it in favor of whatever groups the
judges feel more empathetic towards. Chemerinsky contends that
judicial reliance on empathy is both inevitable and often a positive
good.
Writing the piece on empathy helped me to clarify my thinking on the
subject. However, I fear that to some extent Chemerinsky and I are
talking past each other. I don't disagree with Chemerinsky's claims
that conservative justices (like liberals) sometimes base decisions on
empathy and on their political ideology, and that judicial reliance on
empathy cannot be completely eliminated. Still less do I reject his
claim that cases that come before the Supreme Court often don't have
easy answers (a point I noted myself). Rather, my view is that
reliance on empathy is a negative rather than a positive - whether
practiced by conservative judges or liberal ones. I also think that it
is a poor way to resolve either close cases or easy ones. Finally, I
have no wish to defend all of of the jurisprudence of the current
conservative justices or to suggest that they always meet the standard
of judicial impartiality I advocate.
Part I of our debate is available [2]here. The discussion will
conclude tomorrow.
References
1.
http://www.latimes.com/news/opinion/opinionla/la-oew-chemerinsky-somin28-2009may28,0,4921073.story
2.
http://www.latimes.com/news/opinion/opinionla/la-oew-chemerinsky-somin27-2009may27,0,4134639.story
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
