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Code Words Are Code Words Only If People Use Them As Code Words

May 6th, 2009

Lately, there has been a lot of chatter on the right about Obama and what he meant by “Empathy” when he was describing what he was looking for in a Supreme Court justice nominee. The idea is that Obama was using a code word for “liberal activist judge.” The problem is, I’ve never heard that particular code word before. Now, “strict constructionist,” that’s a firmly established code word. But “empathy”? Not really. However, according to Orrin Hatch:

It’s a matter of great concern if he’s saying he wants people who will take sides. He’s also said that the judge has to be a person of empathy. What’s that mean? Usually, that’s a code word for an activist judge.

As I said, that doesn’t sound familiar to me. So I did a search for the term relative the Supreme Court nominees, and found this from last October:

“What I do want is a judge who is sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can’t have access to political power and as a consequence can’t protect themselves from being — from being dealt with sometimes unfairly, that the courts become a refuge for justice,” said Mr. Obama, who taught constitutional law for years at the University of Chicago.

Several conservative observers of the court said they interpreted those remarks as code for Mr. Obama’s intention to select “liberal activist judges.”

“That comment was pretty remarkable to a lot of us,” said Neomi Rao, a teacher at George Mason University Law School who is a former associate counsel in the Bush White House and a former clerk for Justice Clarence Thomas. “When I hear about a judge who rules on the basis of empathy, I think of an activist judge.”

Hmmm. Still Obama, still conservatives reading into his statement. So I went farther back and found this statement:

I regard law as a discipline in which you have to have empathy for people you are trying to understand.

Aha! That quote was not by Obama, and it related directly to the nomination of a Supreme Court justice! So, what liberal activist judge said that? Let’s see… it was… Robert H. Bork.

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  1. Tim Kane
    May 6th, 2009 at 11:54 | #1

    Here’s the thing about this issue: Judicial activism is and has been the essence of the Common Law legal system for almost 1000 years.

    The most famous work on the Common Law was written by Oliver Wendall Holmes, title “The Common Law”. The essence of which is Judges can and do answer narrow judicial questions by choosing the best idea from the entire “market place of ideas”.

    This is the most profound and important aspect of Common Law.

    There is only one other major legal system out there – Civil Code (i.e. Napoleonic Code). The Civil Code system traditionally said that Judges could not make law – only legislatures could make law.

    This meant that what ever ideological outlook controled the legislature – it had hegemony over all other ideologies. This had the result of turning politics into existential political battles for ideology.

    Throughout the 19th century ideologies and ideological movements emerged on continental Europe. Not so in English Common Law countries. For most of the 19th century these movements were thwarted in European countries.

    Belatedly they began to believe that they could go to Democratic America and achieve success there. However, ideological movements got little traction in the United States – even during difficult times – because ideological battles took place in the judicial branch not the political branches of government.

    When the international liberal system began to break down after the start of WWI (through the great depression) rogue philosophy and ideological movements began to attain hegemony in many Civil Code nations: Communism in Russia, Fascism in Italy, Naziism in Germany, Militant Nationalism in Japan, Filangism in Spain, and eventually Communism in China and Vietnam.

    During this whole troublesome epoch, the Common Law system muddled throught the endless series of crisis: WWI, Pandemic flu, Post War Economic Recession, the Great Depression and WWII.

    In fact you could say that WWII was a battle between Common Law nations (England, India, Canada, United States, Australia and New Zealand) against Civil Code nations, minus Russia (because it was the lone leftist ideologically ruled state). After the War, the Common Law fought it out with Communism in the cold war.

    Meanwhile most of the civil code nations imported features from Common Law nations to mitigate against it’s limitations. Japan, Germany, France and Ital y all have some form of judicial review, at the very least at the constitutional level (in Japan the Supreme Court likes to use the term “Ultra Virus” – which means in applicable).

    Republicans railing against Judicial acvitism is a cry, a call for making our Common Law system act more like a Civil Code system.

    They have good reason for this. They are driven and motivated by rogue philosophy and ideology (Neoconservativism which descends from a political philosopher, Leo Strauss, who was kicked out of Germany before WWII, so his framing device was that of a pre-WWII civil code, ideologically driven frame – minus the frame altering experiance of the devistation of WWII).

    Republicans have figured out that they can’t get complete traction in ruling by ideological means unless Judge made law (judicial review) is eliminate or largely eliminated.

    This railing against judicial activism is a very big thing and shouldn’t be allowed to continue unchallenged for what it is – a very dangerous thing.

    Judge made law invented modern liberty: that is freedom, but freedom that is limited to the point that it doesn’t infringe upon issues of justice and equity (fairness). With out that constraint liberty becomes “might makes right” and quickly descends into tyranny.

    As Simon Wiesenthaler said, upon being liberated by Americans from a concentration camp: “Where there is not justice, there is only tyranny.”

    Freedom is nothing without fairness. With fairness, freedom is everything.

  2. Roger
    May 7th, 2009 at 03:32 | #2

    Freakin’ brilliant, Luis! I implore you to cross-post this as a diary on DailyKos or similar high-profile site. (while you’re at it, you can pimp your site :-) Seriously – this is a gotcha’ that needs to be out there to combat the right-wing meme about this. If you do cross-post, please mention here where you did. Thanks.

  3. Roger
    May 7th, 2009 at 03:47 | #3

    Tim Kane,
    Interesting. I see the battle in the U.S. to be pretty deeply rooted, though. Consider that the U.S. system is supposed to be “rule of law, not of men”… and that lady justice is depicted (in recent centuries) with a blind-fold (which has it’s own meaning – but can easily be confused with the dangerous and evil thought that the law should be applied with no human judgement taking place). Another historical consideration is that case law apparently (according to my limited knowledge) wasn’t in the intent of the founders… or at least was not expressed intially (not until Marbury v. Madison in 1803)… so it continues to be a point of contention sourcing back at least that far (and much prior to Strauss – though your point about his perspective is instructive).

  4. Roger
    May 13th, 2009 at 02:27 | #4

    “The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”

    – Oliver Wendell Holmes, Jr., 1880

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