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May 26, 2009

Empathy, Strict Construction, and Sotomayor

I don't normally make this a focus on SCOTUS, for the obvious reason that about 9,000 other blogs focus on what it does, but I do feel the need to say a word about the nomination and this hubub over "empathy" and courts making "policy."

It seems to me utter stupidity to suggest that judges do not experience empathy, or make policy, every day when interpreting statutes. Indeed, the choice of what approach to interpretation to take (textualism, etc.) is itself a policy choice that furthers certain policies while frustrating others.  Words must be read in context, and context is influenced by our upbringing and backgrounds -- empathy, as I understand how the word is being tossed around. I personally might feel more empathy toward a criminal with a horrible childhood than someone else might, and that might cause me to read a statute more narrowly than someone else might. To pretend that these things do not occur, however, is idiotic.

Anyhow, maybe we can just come up with word processors for Justices, and they can just examine the text based on some boolean search strings, and decide meaning, and we'll be done. Who needs a judge if that's all it is.

May 26, 2009 in Games | Permalink


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