Tag: empathy

Is it impossible these days to have a discussion about an issue or a political race without it becoming personal?  Apparently so, at least for one backer of Judge Jane Markey.

Markey is up against Colleen O'Brien for one of three Republican nominations for Michigan Supreme Court justice.  As faithful readers of this blog know, your Wizard has published three articles critical of Markey decisions, principally on the grounds that they contradict her claim to be a "rule of law" judge.  I have never attacked Judge Markey personally, nor have I attacked her supporters.

The debate over the O'Brien vs. Markey race for the third GOP Supreme Court nomination has, for the most part, been respectful.  Oh sure, there are the usual hysterics because 20 years ago someone bought a ticket to a colleague's fundraiser, but these are minor and safely ignored.  I like to think of the pro-Markey crowd as best represented by Kevin Rex Heine, who at least does his homework.  [Someday, I'd like to meet Kevin and shake his hand.]  That doesn't mean I agree with him, however.  In fact, the more I study Markey's decisions, the more uncomfortable I am with the thought of her on the high court.

Two years ago, your Wizard opined on the choice Republicans faced between potential Supreme Court nominees Mary Beth Kelly and Jane Markey.  Judge Kelly, of course, is now Justice Kelly, and Judge Markey is trying again, this time squaring off against Oakland County Circuit Court Judge Colleen O'Brien.  

Last year's Michigan Supreme Court race featured a fairly clear choice between rule-of-law judges and empathy judges.  The former discern the law and apply it as they find it; the latter rule based on personal whim and feeling, contorting the law to fit their preordained results.  

Sometimes, the rule of law is painful to watch, but it is in these moments when it is most needed.  Judges don't get to make only the easy calls; they have to make tough, occasionally excruciating decisions.  This is the situation that confronted the U.S. Supreme Court in the case of Snyder v Phelps, the anxiosly awaited First Amendment case addressing picketing by the Westboro Baptist Church.  The Court issued its opinion today, available here.

Here are the facts, from the case syllabus:

For the past 20 years, the congregation of the Westboro Baptist Church has picketed military funerals to communicate its belief that God hates the United States for its tolerance of homosexuality, particularly in America's military. The church's picketing has also condemned the Catholic Church for scandals involving its clergy. Fred Phelps, who founded the church, and six Westboro Baptist parishioners (all relatives of Phelps) traveled to Maryland to picket the funeral of Marine Lance Corporal Matthew Snyder, who was killed in Iraq in the line of duty. The picketing took place on public land approximately 1,000 feet from the church where the funeral was held, in accordance with guidance from local law enforcement officers. The picketers peacefully displayed their signs--stating, e.g., "Thank God for Dead Soldiers," "Fags Doom Nations," "America is Doomed," "Priests Rape Boys," and "You're Going to Hell"--for about 30 minutes before the funeral began. Matthew Snyder's father (Snyder), petitioner here, saw the tops of the picketers' signs when driving to the funeral, but did not learn what was written on the signs until watching a news broadcast later that night.

Snyder filed a diversity action against Phelps, his daughters--who participated in the picketing--and the church (collectively Westboro) alleging, as relevant here, state tort claims of intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. A jury held Westboro liable for millions of dollars in compensatory and punitive damages. Westboro challenged the verdict as grossly excessive and sought judgment as a matter of law on the ground that the First Amendment fully protected its speech. The District Court reduced the punitive damages award, but left the verdict otherwise intact. The Fourth Circuit reversed, concluding that Westboro's statements were entitled to First Amendment protection because those statements were on matters of public concern, were not provably false, and were expressed solely through hyperbolic rhetoric.

Held: The First Amendment shields Westboro from tort liability for its picketing in this case.

The latest is her harebrained idea for choosing justices.  You can find it here.  After taking advantage of the current system for two terms, Ms. Weaver has decided that the entire process has to be scrapped (this will, of course, require that our Constitution be amended).  Her notion is that, instead of party nominations, all Supreme Court candidates would have to file nominating petitions, use public money only, and be elected by district, with the state being divided into seven districts.

Why?  Well, because "people in varying parts of the state look at life in different ways" and all current members of the Court live in "the Detroit/Lansing beltway."  

First, I-96 is not a beltway.  It does not circle Detroit or Lansing.  A corridor?  Maybe, but definitely not a beltway.  Ms. Weaver's incorrect use of the term "beltway" reflects her sloppy thinking while on the Court.  All members of the Court are elected by all of Michigan.  It's not a "Court of Representatives," it's the Michigan Supreme Court, deciding cases for the entire state.  

This year's Michigan Supreme Court election will spotlight the "Rule of Law" issue. Voters will be asked to decide between Justice Robert Young and Judge Mary Beth Kelly (the Rule of Law judges) and Justice Alton Davis and Judge Denise Langford Morris (the "empathy" judges).

Simply described, RoL judges interpret the constitution, laws, and contracts by the plain meaning of the words used by their authors. Empathy judges, in contrast, interpret the same words in order to reach a desired result.

Here's a perfect example -- Elizabeth Weaver's parting gift to Michigan jurisprudence. The case is Shay v Aldrich, decided August 23, 2010. In short, the plaintiff sued five defendants, alleging that they had assaulted him. Partway through the case, the plaintiff settled with two of the defendants and signed two separate releases, each releasing a defendant "together with all other persons, firms and corporations, from any and all claims, demands and actions which I have now or may have arising out of any and all damages, expenses, and any loss or damage resulting from an incident occurring on September 8, 2004."

After the plaintiff signed these releases, the other defendants moved to dismiss the remaining claims, arguing that the plaintiff had waived them. The trial court denied the motion, but the Court of Appeals reversed. finding the releases unambiguous. The Michigan Supreme Court then granted leave to appeal and reinstated the claims against the remaining defendants, finding in a 4-3 opinion by Weaver that the plaintiff did not intend -- despite the clear language of the releases -- to waive any claims against the remaining defendants. The Weaver opinion equated "broad" with "vague" and permits the parties to use extrinsic evidence to introduce ambiguities into a contract, thus necessitating "interpretation" where there previously was none.

Since David Souter announced his retirement from the U.S. Supreme Court, much speculation centered on whether The One would nominate Gov. Tinkerbell to fill the open spot. Of course, the fact that she has no judicial experience, has never accomplished anything beyond getting elected (a quality she shares with The One), and has driven Michigan's economy straight off a cliff did not disqualify her from consideration. And there is the arguable point that, far from excluding her, Tink's tax problems (hat tip to Nick for some excellent reporting) gave her instant entree to the short list.

Nevertheless, despite her evident lack of qualifications, Tink was passed over for Sonia Sotomayor of the almighty Second Circuit Court of Appeals. The Second Circuit is based in New York, and it is common knowledge that, for liberals, the source of all wisdom and coolness is New York. Moreover, how could The One ignore a judge who uttered these beauties:

During a panel discussion at Duke in 2005: "All of the legal defense funds out there, they're looking for people with Court of Appeals experience. Because it is -- Court of Appeals is where policy is made."

At UC Berkeley in 2001: "I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life."

So, courts make policy and Latina females make better decisions precisely because they are Latina females, which gives them a richer experience than others. Imagine that latter quote reversed -- "I would hope that a wise white male with the richness of his experience would more often than not reach a better conclusion than a Latina woman who hasn't lived that life." What a firestorm that would cause!

Still, one might say that this is all quibbling on the margins -- what about Sotomayor's actual performance on the bench? Uh, well, not good. She has had eight of her decisions reach the U.S. Supreme Court, and six of them were reversed. One was upheld, and one is still pending. This is a record of reversals on a par with the notoriously awful Ninth Circuit from California. For the sake of fairness, though, let's look at the latter two.

In Knight v Commissioner, the issue was whether certain fees incurred by a trust were fully deductible or deductible only to the extent they exceeded 2% of the trust's adjusted gross income. Writing for the Second Circuit, Judge Sotomayor affirmed a Tax Court ruling and held that the expenses were subject to the 2% floor, reasoning that the expenses could be incurrd if the property was held individually as well as in trust. Although the Supreme Court affirmed the result in Knight, it strongly criticized Sotomayor's reasoning, finding that it "flies in the face of the statutory language," a fact which "strongly supports rejecting the Court of Appeals' reading [of the law]."

Even though the Supreme Court affirmed Sotomayor in the Knight case, the result is still troubling because it shows she will jump to conclusions without regard to - and even in spite of - statutory language to the contrary. The fact that she accidentally careened into the correct conclusion in Knight is of little comfort.

The case of Ricci v DeStefano is currently pending in the Supreme Court, and a decision is expected in June. In this case, the city of New Haven, CT, sought to fill vacancies in its fire department. Hiring and promotions were required to be based solely on merit as determined bya competitive examination, so New Haven hired an outside testing firm to develop the exam. Despite their best efforts, however, the results of the exam were racially disparate such that all of the promotions would have gone to white firefighters, with one or possibly two going to a Hispanic firefighter. No African Americans would have been promoted.

Faced with this potential result, the city refused to certify the results of the exam, such that no firefighters were promoted. The city justified its refusal by claiming that, if it certified the results and promoted the white firefighters, it would face a discrimination lawsuit on the grounds that the test, though facially neutral, had a disproportionately negative impact on minorities (also known as a "disparate impact" claim). The firefighters who would have been promoted then sued, arguing "reverse" discrimination.

The Second Circuit affirmed dismissal of the firefighters' lawsuit. Judge Sotomayor's opinion merely adopted the District Court's ruling, without adding anything substantive. The dismissal was based on the conclusion that the city had a good faith reason for not certifying the test -- it was afraid that the minority employees who were not promoted would sue the city, claiming the test was discriminatory. Therefore, the city was justified in discarding the test results solely because of the race of those who passed.

If left standing, therefore, Ricci supports the proposition that a city may discriminate intentionally if it believes that not doing so will leave it open to a claim that it discriminated unintentionally. This, despite the complete absence of evidence that there was anything invalid about the exam.

And, oh, remember how The One wanted a judge with "empathy"? He said: ""We need somebody who's got the heart, the empathy, 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. And that's the criteria by which I'm going to be selecting my judges." Try this on for size, about the lead plaintiff in the Ricci case, who was passed over for promotion, a decision affirmed by the empathetic Sotomayor (as related by Emily Bazelon):

"Frank Ricci is a 34-year-old "truckie"--he throws ladders, breaks windows, and cuts holes for New Haven's Truck 4. His uncle and both his brothers are firefighters. He studied fire science at college. He has dozens of videos about firefighting tagged on a Web site he set up to recruit for the department. He is also dyslexic, which means that his high score on the promotion test was especially hard-won."

Eight decisions -- 6 reversals, 1 affirmance with her reasoning roundly criticized, and 1 decision on life support at the Supreme Court. Oh brother.