Sen. Jeff Sessions (R-Hazzard County) has been making all sorts of noise at The confirmation hearings of Judge Sotomayor about the inappropriateness judges of using something as wild as "life experience" to help them reach a a decision. As he said just yesterday:
You have evidenced, I think it's quite clear, a philosophy of the law that suggests that a judge's background and experiences can and should -- even should, and naturally will -- impact their decision, which I think goes against the American ideal.
On a Sunday talk show, he even claimed he was "deeply troubled" by this quote from Alito :
JUDGE SAMUEL ALITO: When I get a case about discrimination, I have to think about people in my own family who, who suffered discrimination ..and I do take that into account.
Well, if the Senator was "troubled" by Alito and Sotomayor, I wonder what he'd think of this dissent I dug up authored by the Conservative's Holy Judicial Trinity: Scalia, Reinquist and of course Thomas:
The Case in question is CITY OF CHICAGO v. MORALES ET AL. 527 U.S. 41 (1998) and it involved an ACLU challenge to an anti-gang ordinance enacted by the City of Chicago, which empowered police officers to order any congregation of people that included suspected gang memebers to disperse, and to arrest those that failed to comply in a "reasonable" time.
The Majority Justices, in various combinations looked at that bit of the Constitution that guarantees us "Life and Liberty" and prior Court's interpretations of that bit and concluded:
The freedom to loiter for innocent purposes is part of such "liberty."
furthermore, since the law let a police officer decide what "dispersing within a "reasonable " time meant:
Because the ordinance fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted, it is impermissibly vague. See, e. g., Coates v. Cincinnati, 402 U. S. 611, 614. The term "loiter" may have a common and accepted meaning, but the ordinance's definition of that term-"to remain in anyone place with no apparent purpose" -does not. It is difficult to imagine how any Chicagoan standing in a public place with a group of people would know if he or she had an "apparent purpose." This vagueness about what loitering is covered and what is not dooms the ordinance.
Once again, spot on with prior Supreme Court decisions on the "vagueness" doctrine.
But the dissenters were having none of it. In a blistering dissent authored by Clarence "the big man" Thomas (or is that Clarence Clemons? I always get them confused) the Dissenting judges BLASTED the majority for their ivory tower decision making, and their failure to consider the "real world consequences of their decision"
As Thomas huffs in the opening:
The duly elected members of the Chicago City Council enacted the ordinance at issue as part of a larger effort to prevent gangs from establishing dominion over the public streets. By invalidating Chicago's ordinance, I fear that the Court has unnecessarily sentenced law-abiding citizens to lives of terror and misery
Surely I misread that, because it seemed that the right's paragon of judicial restraint and rectitude was urging the justices to let empathy for the citizens of Chicago govern their decision making...but clearly that can't be right?
and then he goes on:
Today, the Court focuses extensively on the "rights" of gang members and their companions. It can safely do so the people who will have to live with the consequences of today's opinion do not live in our neighborhoods.
Again, it's strange, and clearly show how inferior my own reading comprehension skills must be, because it sounds to me awfully like Justice Thomas is suggesting that if the justices had different "life experiences", such as living on the South Side of Chicago, they might have reached, different, and even better conclusions as to the law they were reviewing-but of course he'd never do that.
and yet, here it is again, a paragraph that almost appears to be advocating concern for those affected by the law be allowed to trump impartial statutory analysis:
Rather, the people who will suffer from our lofty pronouncements are people like Ms. Susan Mary Jackson; people who have seen their neighborhoods literally destroyed by gangs and violence and drugs. They are good, decent people who must struggle to overcome their desperate situation, against all odds, in order to raise their families, earn a living, and remain good citizens. As one resident described: "There is only about maybe one or two percent of the people in the city causing these problems maybe, but it's keeping 98 percent of us in our houses and off the streets and afraid to shop.. By focusing exclusively on the imagined "rights" of the two percent, the Court today has denied our most vulnerable citizens the very thing that JUSTICE STEVENS, ante, at 54, elevates above all else-the "'freedom of movement.'" And that is a shame. I respectfully dissent.
And before I close, I want to make one thing perfectly clear: Much as I disagree with Thomas' conclusions in this case, I actually DO admire his (misplaced) passion and empathy. I'm not mocking Thomas here so much as I am the deeply hypocritcal and self-righteous puffery of Republicans Like Jeff Seessions who is trying to score cheap poltical points by doing to the word "empathy" what they did to the word "liberal" some years back.
To me Empathy is the whole reason WHY we allow our laws to be interpreted by human beings. People who are insulated from any pressure to obey the whuim of the mob and are carefully vetted and tested for their qualities of analysis, insight, and yes, empathy. If this were not so we could have our legal systems replaced with computers running semantic analysis software. Which solution would give us a perfectly predictable and regular "legal" system, but cause us to lose entirely our "justice" system.