Wednesday, May 27, 2009

Shark on Public Radio

I'll be discussing the Sotomayor nomination tomorrow morning at 7:30 with Joy Cardin on Wisconsin Public Radio. I like the way they keep moving me back to a later hour. They get me.

Tuesday, May 26, 2009

Doubling Down on Empathy

This strikes me as a good description of President Obama's nomination of Judge Sonia Sotomayor to the United States Supreme Court. Like all of us, I am still learning about Judge Sotomayor and have probably revised even those thoughts I expressed this morning on Charlie Sykes show or those that you can see this evening on the six o'clock news on Channel 12 (in a "dueling" segment with Ed Fallone in which the "duel", if there was one, mostly found the cutting room floor.)

But I do believe that Obama's selection contrasts sharply with those of President Bush and the differences are instructive and fodder for debate about the role of the judiciary. It isn't that I am prepared to say that Judge Sotomayor is an extraordinarily liberal nominee (although she may be), but we can say that she has made at least one extraordinary statement. Although one should only let a single statement bear so much weight, we are, after all, blogging here and relative immediacy has its virtues.

In a lecture at Berkeley, she said the following:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

There is, of course, both pedestrian and a controversial aspects to this statement. It can be read to say a little or to say quite a bit. The pedestrian element is that we are all a product of our pasts and being a latina (e.g., Judge Sotomayor) or growing up in a blue collar household in Milwaukee (e.g., me) is part of that. There are times when this experience (or empathy for those similarly situated) can help us see, as I have blogged before, the true nature of the circumstances before us. If that was all she had to say, it'd be unexceptional.

But I don't read her remarks to stop there. To the contrary, she seems to say that the fact that the life experiences of judges will affect their presuppositions and that that those presuppositions will affect judging is not just inevitable, but, at least in certain ways, normative.

To be fair, in the same speech, she mentions the need to check her assumptions. But, in expressing her belief that there is no neutral stance from which to judge (but, rather, a series of perspectives), she is not saying that neutrality or dispassion is difficult. She is saying that it is nearly impossible or at least very unlikely. While she acknowledges that not all Latinas (or African Americans or children from blue collar households) will process their experiences in the same way, she seems comfortable with the idea that there is (perhaps even due to what she calls "inherent psychological or cultural differences")a perspective associated with - if not compelled by - one's background. This ought, she seems to say, to be relevant in the selection of judges and in the process of judging.

The difficulty, of course, is that there is a world of difference between acknowledging that who you are is a product of where you have been and believing that where you have been and what you think it tells you about the world ought to be - if not the measure of the law - a substantial filter through which it should be viewed. If neutrality is a struggle, then judicial methodology ought to be wary of that which gives judges too much discretion. In this sense, what you say about method makes a difference. Checking one's assumptions is, I think, not only a matter of intent and internal struggle, but method. When you begin by privileging or endorsing the idea that empathy or the peculiar lessons of one's life, the threat is judging that is more declamation that discernment.

And this does effect judging in a way that implicates popular debates about judicial activism and restraint. This is reflected, I think, in the Judge's somewhat startling statement that she would hope a Latina would reach a better decision than someone who "hasn't lived that life." Some people see that as a racist statement. Although her reference to "inherent psychological and cultural differences" makes me uneasy (while not intended as such by her, this is not a principle that is historically associated with judging men and women by the content of their character), I don't see it as "racist."

It can, I think, reflect one of two assumptions; but I think that Judge Sotomayor clearly intends one over the other. One possibility it that, because there is no basis upon which to conclude that your experience or preferred empathies (or anyone else's) are preferable to any others, one ought not to be overly apologetic about using your own as a starting point.

But I don't think that is quite what she is saying. The notion that the empathies of someone "who has lead that life" might lead to better (as opposed to different) decisions is to say something about the nature of the world and the role that judges should play in it. It reflects, I think, a stance that is roughly evocative of Justice Stone's famous foonote 4 in Carolene Products, suggesting extra constitutional solicitude in the case of "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities ...." Her comments reflect a belief that this is the way in which the world works, a judgement about who is likely to be on the short end of the stick and an assumption about the role that judges ought to play in response.

If that's so, Sonia Sotomayor would hardly be the first person to see things this way. It has been a prominent feature of liberal jurisprudence for decades. Whether it is, in 2009, an appropriate perspective is another matter. That would be something worth debating.

Cross posted at Marquette University Law School Faculty Blog.

Thursday, May 21, 2009

Ament ought not to be asking for his reputation

I should have known that some people would claim that the County's settlement with Mercer somehow vindicates Tom Ament and the Board. According to capper, Supervisor Wieshan apparently believes:
"This vindicates the County Board. You don't get $45 million for just being a nice guy. It wasn't the County Board or the evil politicians that created this. We were given bad information from them."
He gave a similar statement to the Journal Sentinel. Lee Holloway claims to have been vindicated.

A few problems.

1. Settlement for roughly ten cents on the dollar is normally not considered a win. $45 million dollars is a lot of money. The cost to the County of this fiasco is much more. I generally have told clients that any case that will go to a jury that you can settle for ten (or even twenty) cents on the dollar is a no brainer.

When the jury consists of people who are essentially being asked to vote themselves money, the incentive to settle is even greater. (Assuming that there were Milwaukee County residents on the jury.)

2. The sense one gets from following the testimony is that no one at the County was particularly curious about this. A provision that essentially pays people retirement benefits for the period in which they were working and then tries to calculate an offsetting reduction has the potential to cause millions of dollars. One doesn't have to be a rocket scientist, much less Tom Ament and Karen Ordinans, to understand that the cost is going to turn on predictions about what will happen in the future, i.e., how will retirees react, how long will they live, how will the portfolio perform. There can be no one answer to that question - only a range of possible answers that will vary according to the assumptions one makes about that future. The real scandal is that Ament, Ordinans, Holloway, et al., couldn't be bothered to think very hard about this.

3. Vindication generally does not consist of a claim that I voted for what I did not understand and allowed myself to be fooled about.

Meet me in St. Louis ...

... since I do not have the swine flu. I will be speaking on judicial electons at the Conservative Heartland Leadership Conference on June 4.

Tuesday, May 19, 2009

Fair minded words

According to President Obama, that's how we ought to discuss abortion. These were the fair-minded words We ought to have open hearts and minds. Pro-choice people should not assume that pro-lifers are "simply ... ideologue[s] who wanted to inflict suffering on women ...." Here are the fair minded words that Obama used in a radio ad to attack John McCain.

“Let me tell you: If Roe vs. Wade is overturned, the lives and health of women will be put at risk. That's why this election is so important,” the Obama ad contends. “John McCain's out of touch with women today. McCain wants to take away our right to choose. That's what women need to understand. That's how high the stakes are.”


Well, at least he didn't call him a right wing ideologue

Sunday, May 17, 2009

Shark and Swine ???

So ... I go to Mexico. Have a nice time. Come back Sunday. And the flu symptoms start Friday. I miss the law school hooding ceremony and am now supposedly "quarantined" waiting for test results. I am told, however, the the likelihood of this being the H1NI is very small. When I feel well enough to be imperious and dismissive, blogging will resume.

Friday, May 15, 2009

Neumann endorses Augsburg Confession!

The local left has launched a preemptive strike against Mark Neumann's candidacy for governor based on his membership in the Wisconsin Evangelical Lutheran Synod. I am not a member of the WELS and disagree strongly with many of its positions. I have certainly not committed to supporting Mark Neumann for Governor. Choosing between Mark and Scott Walker will be like deciding whether to pitch C.C. Sabathia or Tim Lincecum. Difficult but fortunate.But this "controversy" is silly.It begins with Cory Liebmann going after Neumann for concerning himself with whether legislation is moral. We certainly can't have that. I'd rather have my public officials limit themselves to consideration of the naked self interest of any combination of groups that can deliver reelection. Who needs right and wrong?Cory is also upset because Neumann prays about major life decisions and believes that he can discern what God is calling him to do. This apparently turns him into some kind of religious fanatic. Perhaps, in Liebmann's world, it does. He ought to get around more. Michael Leon thinks that Neumann must be a "Mean Machine" because his church, like almost all within the Abrahamic tradition, believe that homosexual conduct is sinful. Leon undoubtedly opposed the elevation of the Roman Catholic Nancy Pelosi to the speakership. He opposed Joe Biden for VP and campaigned against John Kerry. He must believe that Jim Doyle should resign.But, no, he would say, because Pelosi and the others have made clear that she rejects her church's teaching even while seeking to claim an affinity with her co-coreligionists. The upshot is that those who adhere to traditional Christian and Jewish and Muslim learning on human sexuality have become outsiders - beyond the pale of polite discourse. Good luck with that and, all you all, stop harping on the evils of religious tests for public office.There is, according to Neumann's critics, a hostility to the papacy and Roman Catholic doctrine within the WELS. And so there is. On a variety of theological issues, there are sharp differences. On matters of policy, there are none - or at least none of dispositive significance. In the view of Liebman and Leon, conservative Catholics ought to ignore important issues regarding the family, the sanctity of life and religious liberty because the WELS thinks that the Roman Catholic Church is too attached to salvation by works and the veneration of Mary and the Saints. Why worry about school choice and abortion, when we can vote on transubstantiation and apostolic succession.I would worry that these guys are injecting religion into politics, but they say they aren't. So ....

Thursday, May 14, 2009

The trouble with empathy

Over at the Marquette University Law School Faculty Blog, I have posted on the problems with empathy in judicial decisionmaking in response to a post by my colleague Ed Fallone on the importance of logic in constitutional interpretation.

The problem with the President's emphasis on empathy are twofold. First, the type of empathy he called for (at least during the campaign) does not seem to be ideologically neutral. He says he wants judges to "recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old." He doesn't call for empathy for religious folks who face what they see as a hostile secular culture, the victims of crimes, working families burdened by taxes, small businesses hampered by regulation or the unborn.

Was that an oversight? Perhaps, but it's an oversight that is intrinsic to any method of judicial decisionmaking that privileges the personal preferences and insights of the judge. We may all have empathy but not to the same degree for the same people. Too much emphasis on empathy threatens to substitute the views of the judge for the demands of the law.

This leads us to the second (and larger) problem. It's not that empathy is completely irrelevant to application of the law. It took empathy to see that the equal protection guarantee adopted in the 14th Amendment is inconsistent with segregation. The difficulty is in making it more important than it is. Obama does not say that empathy is a good quality for judges to have. He says that empathy for the groups he describes is "the criteria by which I'm going to be selecting my judges." (emphasis supplied)

But, as I have argued, an overemphasis on empathy leads to a result-oriented jurisprudence. It substitutes the preferences of the judge for the laws that the people's elected representatives have enacted. Lawyers are fond of saying that "hard cases make bad law." One of the reasons for that is empathy. We don't want to allow a bad result even if the law requires it. But to follow the law rather than the heart is what a judge is supposed to do.

There are cases where the proper legal result is unclear. There are cases where a judge must make an educated judgment about what a principle means and how it is best served. As I've said, empathy may play a role in that, but only in the service of applying some norm based in an authority outside of the judge's own predilections. Empathy has its place, but it ought not to be "the criteria" for selecting judges or deciding cases.

Wednesday, May 13, 2009

"You don't need banks and bondholders to make cars"

So says an unnamed official of the Obama administration in connection with the administration's attempts to privilege the junior claims of the UAW over the senior claims of Chrysler and GM bondholders. The statement has been criticized as stunningly ignorant and so it is.

Of course, cars - and lots of other things - have been made without banks and bondholders. Government can appropriate and allocate capital and make things like the East German Trabant. But without profits, capital tends to shrink and, without price signals, it tends to be misallocated. Trabis continued to be built because nothing else was.

We might dismiss this as an ill considered remark by a single official of unknown importance, but we can see its influence on administration policies. The deals proposed by the administration are an attempt to use the power of the state to scare creditors away from exercising their legal rights. Given the administration's demonstrated penchant to use money it does not have (as it borrows at staggering rates) to influence decisions that it knows nothing about (like restructuring auto companies), the scope of the political world seems to be expanding exponentially.

It is not surprising that a group of Wisconsin legislators would protest Chrysler's plan to close its Kenosha plant. They are politicians and their constituents are here. But when capital is allocated by command, they direct their protests to other politicians who will respond to them as politicians. If our guys have more pull, then cars are built in Kenosha. If Michigan's pols have more weight, they'll be built there. Or they will be built in both places. If this turns out to be a good business decision, it will be so by coincidence and not because the choice was made for the right reasons.

It would be going too far to say that the Obama administration has undercut the rule of law, displaced the role of profits and confounded the importance of price in allocating resources. But it has moved more quickly and gone further in that direction than I would have thought it would.

Tuesday, May 12, 2009

I went to Mexico and all I got was ...

... apparently nothing, but the opportunity to lounge in the shade (German and Irish descent does not add to sun worship) and attend the wedding of my niece, Meggan.

We stayed at Dreams Tulum - about ninety minutes southeast of Cancun. Outside my room, I saw this:

But the Reddess (all Irish) did take in about 13 minutes of sun. The head in the lower left hand corner belongs to my brother-in-law James. The resort was not busy.

My son and daughter-in-law (who actually has some substantial Mexican ancestry)turned themselves into lobsters.

But what does this have to do with law or politics or policy? Did I reflect on whether the reaction to the swine flu was exacerbated by the post-Katrina criticism of the government? Did I wonder whether the wait staff rejoiced in the idea of our new President Obama? Did think about the relationship between Mexico's authoritarianism and its poverty?

Not so much.

Tuesday, May 05, 2009

Faith in rail

In Sunday's Crossroads section, John Gurda reflects on trains in Zurich and how cool it would be if we had them here in Milwaukee, rather than living in "Carland" - a world that he finds isolating, alienating and inefficient. It's wastefulness seems "self evident" (so he offers no support) and those who are "stuck" in their cars are "grim."

As I have blogged before, I like trains too. But, as I have also blogged, I am frustrated by the typical "pro-transit" writing which almost always ignores the economics. Zurich, of course, in nothing like Milwaukee. Its population density is almost twice as high. Fixed rail works when there are large amounts of people who wish to travel between fixed points. If that condition does not obtain, then rail is inefficient and will not be used. No amount of wishing it were otherwise will make it so.

Gurda's expression of delight at the fact that the feds will impose upon the city what he calls a "downtown rail network" - actually a train that goes in a square - is nothing more than an expression of taste without some sense of who will use it and what it will cost in comparison to alternatives.

Sunday, May 03, 2009

Meditations on the Precautionary Principle

Much of my past week was consumed by family drama over whether or not to attend a family wedding in Tulum, Mexico next week - and, as the week progressed, whether the wedding should even go forward.

Without getting into the details, I have come to believe that travel to Mexico presents a small risk of something very unpleasant (the flu), something extremely inconvenient (quarantine in Mexico for several days) and something significantly uncharitable (spreading the virus to others). Even if you believe that the reaction to the flu is overhyped, the fact that it is contributes adverse consequences associated with the last risk, i.e., schools and businesses closing. (I suppose that there is still some risk of an illness more severe than the normal flu and even death, but I think that's very small.)

Assessing these risks and deciding what to do is the kind of thing that we have to do all the time. It mirrors major policy debates like those over global warming and the appropriate responses to the threats of terror.

One of the things that strikes me about these debates is how reluctant we are to admit what we don't know and the extent to which we believe that we can surf the net and pick and choose among various factoids to suggest that we know what we can't. Isn't it better to acknowledge that we have to live with a certain amount of risk and that sometimes we have to take precautions that will turn out to be unnecessary?

All of this is related, I think, to our desire to want decisions to be easy and answers to be clear. We see the latter expressed in the political blogosphere in the ease which we think that the proper response to people we disagree with is insults and ridicule.