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Wednesday, April 27, 2005

Sympathy in Judging

The Debate Link responds to my post about Justice Blackmun, Deshaney, and the perils of using sympathy as a guide in judging.
My response:

Thanks for your comments. Certainly, sympathy can be predictable at times, like in the Deshaney case. However, a judge's sympathy is inextricably linked in most cases to his or her sense of moral right and wrong. And "sympathy" in judging need not be confined to easy cases like Joshua's in Justice Blackmun's view. That leads to the potentially troubling idea that judges can overcome logic, reason, and precedent because of their own feelings on the issue. So, my problem with sympathy in judging is not all due to its unpredictable nature, but its rather anti-democratic, moralist and yes, amorphous, nature. On that front, I should say that it is quite possible that the words "cruel" in the 8th amendment are readily suscebtible to an objective test: what was considered cruel at the time of the amendment's passage. Even the horrid "evolving standards of decency" test attempts in some way to externalize the standard against which cruelity is judged by asking whether there is a national consensus against the practice. Therein lies the obvious problem with Justice Kennedy's Roper opinion: it concocts a consensus out of whole cloth to meet this standard, but that effort doesn;t even matter because ultimately, Justice Kennedy's own feelings and judgment about what cruel means will be brought to bear. Even the evolving standards test doesn't internalize the standard to this extent (though by its nature, it probably invites it). And finally, Justice Blackmun's assertion, without support, that the rigid, formalist judging style was one impetus for the 14th amendment is questionable at best. In fact, it is more likely that the reconstruction amendments were passed in recognition that judges are not the branch to create new rights for people and that the prohibition of slavery (and the altering of existing private property rights), the provision for voting, and other measures were properly the role of the legislature. Many of the Senators involved in the debate were tried and true opponents of the Dred Scott decision, believing that it was the lack of formalism which led to that travesty of a decision. Upon that view, we not only shouldn't question a proper formalism, but should embrace it.
In the end, as I said before, we should recognize that human synpathy is a universal emption. But the problem as I see it with Blackmun's Deshaney opinion is that it purports to hold sympathy out as a standard. And while sympathy with poor Joshua might be in order, should it trump true legal analysis. And in cases other than Joshua's, is sympathy with the causea standard you feel comfortable subjecting your own legal rights to? Again, thanks for your comments.


Blogger David Schraub said...

Excellent post. I've responded here (I appreciatae you also placing your response in my comments, however this one, as you shall see, would be slightly too long to comfortably rest there, I think).

4:27 PM  

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