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Originally Posted by excon

Hello again, Steve:

I can mount a legal argument with anybody. Scalia, in this case, makes it easy. He has a sharp legal mind. It's just pointed in the wrong direction...

In this case, he argues against the decision because it's based on what others perceive as changes in our society. He sees no change as it relates to the Constitution and thereby dissented against the decision.

If I argued the case with nothing more than the bare facts presented here, I'd ask where in the Constitution does it say NOW, or where did it say it longer than 15 years ago, that we could execute children?

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You should probably read his argument entirely before making those arguments. He does discuss the "changes in our society," but he doesn't believe - correctly - that 18 states is a "consensus." Do you?

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In determining that capital punishment of offenders who committed murder before age 18 is "cruel and unusual" under the Eighth Amendment, the Court first considers, in accordance with our modern (though in my view mistaken) jurisprudence, whether there is a "national consensus," ibid. (internal quotation marks omitted), that laws allowing such executions contravene our modern "standards of decency,"1 Trop v. Dulles, 356 U. S. 86, 101 (1958). We have held that this determination should be based on "objective indicia that reflect the public attitude toward a given sanction"--namely, "statutes passed by society's elected representatives." tanford v. Kentucky, 492 U. S. 361, 370 (1989) (internal quotation marks omitted). As in Atkins v. Virginia, 536 U. S. 304, 312 (2002), the Court dutifully recites this test and claims halfheartedly that a national consensus has emerged since our decision in Stanford, because 18 States--or 47% of States that permit capital punishment--now have legislation prohibiting the execution of offenders under 18, and because all of four States have adopted such legislation since Stanford. See ante, at 11.

Words have no meaning if the views of less than 50% of death penalty States can constitute a national consensus. See Atkins, supra, at 342-345 (Scalia, J. dissenting). Our previous cases have required overwhelming opposition to a challenged practice, generally over a long period of time...

Of course, the real force driving today's decision is not the actions of four state legislatures, but the Court's " ' "own judgment" ' " that murderers younger than 18 can never be as morally culpable as older counterparts. Ante, at 9 (quoting Atkins, 536 U. S. at 312 (in turn quoting Coker, 433 U. S. at 597 (plurality opinion))). The Court claims that this usurpation of the role of moral arbiter is simply a "retur[n] to the rul[e] established in decisions predating Stanford," ante, at 9. That supposed rule--which is reflected solely in dicta and never once in a holding that purports to supplant the consensus of the American people with the Justices' views7--was repudiated in Stanford for the very good reason that it has no foundation in law or logic. If the Eighth Amendment set forth an ordinary rule of law, it would indeed be the role of this Court to say what the law is. But the Court having pronounced that the Eighth Amendment is an ever-changing reflection of "the evolving standards of decency" of our society, it makes no sense for the Justices then to prescribe those standards rather than discern them from the practices of our people. On the evolving-standards hypothesis, the only legitimate function of this Court is to identify a moral consensus of the American people. By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation? 8

The reason for insistence on legislative primacy is obvious and fundamental: " '[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.'...

In other words, all the Court has done today, to borrow from another context, is to look over the heads of the crowd and pick out its friends.

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Your turn.

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If you cannot put yourself in someone else's shoes, how can you EVER possibly be a judge of what's reasonable?

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How could there possibly be consistency in the law if it is based on a judges feelings ? There can be judges discretion in things like sentencing . But that is not the role of SCOTUS . SCOTUS is there to determine constitutionality of law. Not to make laws based on the judges feelings of what the law should be .

What you are doing is turning upside down your very arguments that you have made about the 14th amendment . If SCOTUS rules with empathy to one group it is not applying equal protection to another .Animal farm logic 101 .All groups are equal ,but some more than others.
What does Obama really want ?He is openly looking for an umpire who's calls will favor one team over another because perhaps they don't have the same record of success (using the famous baseball analogy used repeatedly during the Roberts hearings).

Obama was a law professor ? I wonder if he graded his students based on their knowledge of the law or how that grade would impact their lives ?

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Originally Posted by excon

Hello again, tom:

Well, there you go. You guys just don't know what empathy is. The question, and my answer about reasonable, is spot on point.

Empathy is the capability to share your feelings and understand another's emotion and feelings. It is often characterized as the ability to "put oneself into another's shoes," or in some way experience what the other person is feeling. Empathy does not necessarily imply compassion, sympathy, or empathic concern. It simply means being able to understand where the other person comes from.

If you cannot put yourself in someone else's shoes, how can you EVER possibly be a judge of what's reasonable? Of course, you couldn't. You could only judge it from YOUR perspective, which may not be reasonable at all.

Reasonable, is reasonable, is reasonable... Whatever one is being reasonable about whether it's the expectation of privacy, or the expectation of not getting punched in the nose when walking down the street. It's all the same.

Excon

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This "right winger" has empathy for the unborn, the victims of crime.

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If you cannot put yourself in someone else's shoes, how can you EVER possibly be a judge of what's reasonable? Of course, you couldn't. You could only judge it from YOUR perspective, which may not be reasonable at all.

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How can a judge , who hopefully has never committed murder or rape , EVER see it from the perspective of a murderer or rapist? This judge can only judge it from his or her perspective as a non- murderer or non - rapist. Is that reasonable to you ? :confused:





G&P

He revealed what he thinks is empathy during a 2001 radio interview. He said that the most activist court in history had not gone far enough in remaking America. He said the Warren court had limited itself to changing some of our laws but had failed to order "redistributive change" of our economic system by breaking "free from the essential constraints that were placed by the Founding Fathers in the Constitution."

Essentially he is looking for justices who will take it upon themselves to change the constitution by breaking free from the constraints written into it. Yup redistributionism shows empathy .

We already know what kind of judges he is looking for because he has already named a judicial appointment .
That would be David F. Hamilton (nephew of Lee Hamilton )named to the 7th Circus Court of Appeals... someone Obama calls a moderate and a prototype for the nominees he will seek . Obama praised him for his"empathy with real people."

This judge is a former ACLU lawyer and leader of the Indiana chapter .He was also an ACORN fundraiser . When Bill Clintoon appointed him the ABA rated him unqualified.

One of his decisions as a district judge was to bar the Indiana legislature from permitting "sectarian prayers "to open daily sessions of the Indiana House of Representatives.
In a bizarre ruling he said that the mentioning of the name Jesus Christ was a sectarian restriction... but invoking Allah in prayer wasn't .
The 7th Circus overruled his parsing .

Showing empathy for the patient ;He prevented enforcement of an Indiana law requiring abortion clinics to warn about the risks of the procedure, or requiring two visits before the abortion.
He was overturned on this also with the 7th Circus stating this strong rebuke

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For seven years Indiana has been prevented from enforcing a statute materially identical to a law held valid by the Supreme Court in Casey, by this court in Karlin, and by the fifth circuit in Barnes. No court anywhere in the country (other than one district judge in Indiana [i.e., Hamilton]) has held any similar law invalid in the years since Casey.

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While waiting for ex to come up his next legal argument against Scalia's dissent in Roper V. Simmons, ponder this from Thomas Sowell:

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Justice David Souter’s retirement from the Supreme Court presents Pres. Barack Obama with his first opportunity to appoint someone to the High Court. People who are speculating about whether the next nominee will be a woman, a Hispanic, or whatever, are missing the point.

That we are discussing the next Supreme Court justice in terms of group “representation” is a sign of how far we have already strayed from the purpose of law and the weighty responsibility of appointing someone to sit for life on the highest court in the land.

That President Obama has made “empathy” with certain groups one of his criteria for choosing a Supreme Court nominee is a dangerous sign of how much farther the Supreme Court may be pushed away from the rule of law and toward even more arbitrary judicial edicts to advance the agenda of the Left and set it in legal concrete, immune from the democratic process.

Would you want to go into court to appear before a judge with “empathy” for groups A, B, and C, if you were a member of groups X, Y, or Z? Nothing could be farther from the rule of law. That would be bad news, even in a traffic court, much less in a court that has the last word on your rights under the Constitution of the United States.

Appoint enough Supreme Court justices with “empathy” for particular groups and you would have, for all practical purposes, repealed the 14th Amendment, which guarantees “equal protection of the laws” for all Americans.

We would have entered a strange new world, where everybody is equal but some are more equal than others. The very idea of the rule of law becomes meaningless when it is replaced by the empathies of judges.

Barack Obama solves this contradiction, as he solves so many other problems, with rhetoric. If you believe in the rule of law, he will say the words “rule of law.” And if you are willing to buy it, he will keep on selling it.

Those people who just accept soothing words from politicians they like are gambling with the future of a nation. If you were German, would you be in favor of a law “to relieve the distress of the German people and nation”? That was the law that gave Hitler dictatorial power.

He was just another German chancellor at the time. He was not elected on a platform of war, dictatorship, or genocide. He got the power to do those things because of a law “to relieve the distress of the German people.”

When you buy words, you had better know what you are buying.

In the American system of government, presidential term limits restrict how long any given resident of the White House can damage this country directly. But that does not limit how long, or how much, the people he appoints to the Supreme Court can continue to damage this country, for decades after the president who appointed them is long gone.

Justice John Paul Stevens virtually destroyed the Constitution’s restrictions on government officials’ ability to confiscate private property in his 2005 decision in the case of Kelo v. New London — 30 years after President Ford appointed him.

The biggest danger in appointing the wrong people to the Supreme Court is not just in how they might vote on some particular issues — whether private property, abortion, or whatever. The biggest danger is that they will undermine or destroy the very concept of the rule of law — what has been called “a government of laws and not of men.”

Under the American system of government, this cannot be done overnight, or perhaps even during the terms in office of one president — but it can be done. And it can be done over time by the appointees of just one president, if he gets enough appointees.

Some people say that whomever Barack Obama appoints to replace Justice Souter doesn’t really matter, because Souter is a liberal who will probably be replaced by another liberal. But if no one sounds the alarm now, we can end up with a series of appointees with “empathy”— which is to say, with justices who think their job is to “relieve the distress” of particular groups, rather than to uphold the Constitution of the United States.

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One of the front runners, Sotomayor, does think race, gender, empathy based on life experience as a minority do matter in judging. She thinks it important to create opportunities for "more women and people of color on the bench so we can finally have statistically significant numbers to measure the differences we will and are making."

She said "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."

There's your judge with empathy, ex. What kind of "difference" should judges be making and why does it matter what color or gender they are?

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Originally Posted by speechlesstx

There's your judge with empathy, ex. What kind of "difference" should judges be making and why does it matter what color or gender they are?

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Hello Steve:

Here's a quote from Elliot: "...is trying to have these guys disbarred for doing their jobs to the best of their abilities AND protecting the country at the same time."

Does that mean that the justice system should have "empathy" for them, not because of their color or gender, but because they thought they were protecting their country?

I think you do. The only difference is that YOU have empathy for them, therefore the justice system should too.

excon

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Originally Posted by excon

Hello Steve:

Here's a quote from Elliot: "...is trying to have these guys disbarred for doing their jobs to the best of their abilities AND protecting the country at the same time."

Does that mean that the justice system should have "empathy" for them, not because of their color or gender, but because they thought they were protecting their country??

I think you do. The only difference is that YOU have empathy for them, therefore the justice system should too.

excon

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Ahhh... but we're not talking about judicial action here. We're not talking about the court system. We're talking about a disbarment process. This isn't the justice system but rather the internal administration of the bar associations. Different thing entirely.

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Originally Posted by excon

Hello Steve:

Here's a quote from Elliot: "...is trying to have these guys disbarred for doing their jobs to the best of their abilities AND protecting the country at the same time."

Does that mean that the justice system should have "empathy" for them, not because of their color or gender, but because they thought they were protecting their country??

I think you do. The only difference is that YOU have empathy for them, therefore the justice system should too.

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I don't recall having ever argued this from a position of empathy. As Elliot prefaced this with, "They didn't actually break the law in any way, shape or form."

I don't believe they broke the law either so why should the justice system go after them in the first place? It's a legal issue, not a matter of empathy. What law did they break?

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Originally Posted by speechlesstx

I don't believe they broke the law either so why should the justice system go after them in the first place? It's a legal issue, not a matter of empathy. What law did they break?

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Hello again, Steve:

I don't know. You guys seem to miss it... Of course you don't use the WORD empathy, but you have it nonetheless.

You DECLARE that they didn't break any law. But, you don't know that. You have no idea. Your declaration doesn't come from your legal background, or a judicious legal review. It comes from your political leanings. You don't think they broke a law because you have EMPATHY for THEM.

I understand that. It's YOU who's having trouble here.

excon

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Originally Posted by excon

Hello again, Steve:

I dunno. You guys seem to miss it.... Of course you don't use the WORD empathy, but you have it nonetheless.

You DECLARE that they didn't break any law. But, you don't know that. You have no idea. Your declaration doesn't come from your legal background, or a judicious legal review. It comes from your political leanings. You don't think they broke a law because you have EMPATHY for THEM.

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I have empathy for lots of people, I may even have empathy for these lawyers. I'm personally sick and tired of the partisan witch hunt that was declared on Bush the day after the 2000 election and is still just ramping up. I mean seriously ex, after 6 years of "Bush lied people died," "illegitimate president" and all that BS, the Democrats ran a Trojan horse campaign in 2006 and IMMEDIATELY after winning control of congress put their attack in high gear.

Now Obama is saying one thing and doing another by selectively releasing memos that fan the flames and leftists all over are rabidly salivating over the prospect of finally getting to try Bush and co. for war crimes, beginning with investigating these lawyers who were just doing their job. What rational person with even half a heart wouldn't have EMPATHY for these people? For crying out loud, if the left would go after our enemies with as much fervor as they do their own countrymen we wouldn't be having this discussion.

So yeah, I have empathy, but I'm not making a judgment of the case based on EMOTION, and that is what is driving this whole sordid witch hunt. Emotion doesn't have a darn thing to do with the law, and you said justice was blind. We shouldn't be putting people on trial because of our personal hatred for them or what we "feel" they did wrong. Put aside the emotion, slap on the blinders and answer the question, what law did these attorneys break? Should the justice system have empathy towards them or only toward terror suspects?

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Originally Posted by speechlesstx

What rational person with even half a heart wouldn't have EMPATHY for these people? For crying out loud....Put aside the emotion, slap on the blinders and answer the question, what law did these attorneys break? Should the justice system have empathy towards them or only toward terror suspects?

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Hello again, Steve:

Here's my assessment. I've said it before. I'll probably have to say it again...

If the lawyers who wrote the memos just weren't very good lawyers, then I have ALL SORTS of empathy for them. I'm not very good at what I do either. If, as Elliot said, they did it to best of their ability, they should NOT be prosecuted, disbarred or punished in any way...

However, if they wrote the memos because they wanted to provide cover for vice and the dufus, then THAT'S A CRIME. I have NO empathy for them, and I want to see them punished to the full extent of the law. Let me say that another way. If they did legal research that lead them to a certain conclusion, that's not criminal. However, if they had a conclusion in mind that they wanted to reach, and the legal research was done to justify that conclusion, that's a CRIME.

It's going to take an investigation to find that out, isn't it?

excon

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Originally Posted by excon

Hello again, Steve:

Here's my assessment. I've said it before. I'll probably have to say it again....

If the lawyers who wrote the memos just weren't very good lawyers, then I have ALL SORTS of empathy for them. I'm not very good at what I do either. If, as Elliot said, they did it to best of their ability, they should NOT be prosecuted, disbarred or punished in any way...

However, if they wrote the memos because they wanted to provide cover for vice and the dufus, then THAT'S A CRIME. I have NO empathy for them, and I want to see them punished to the full extent of the law.

It's going to take an investigation to find that out, isn't it?

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And I know tom and I have both said let the investigations begin. Lay it all out, not just what the administration wants out. Put Pelosi and every other member that was in on this under oath, but don't try it in the media based on selectively released memos, heated partisan rhetoric and Democrat denials. Barry-O is already showing a propensity to play political hardball to get his way while carefully parsing his teleprompted words to keep himself above the fray. If you want an investigation let's have one, but what you're going to get is a circus.

Re empathy :

"I loathed most of the things in favor of which I decided." Oliver Wendell Holmes.

I agree with Speech. If there is to be an investigation, then let it be a full investigation. We can start by deposing Stretch Pelosi, follow up with Harry Reid, and them move along to all the ranking Democrats in the Senate and House Armed Forces and Intelligence committees who were advised of this stuff back in 2002. Then we can depose the witnesses who were in the meetings in which these Dem leaders were advised of all this. We can ask them why they didn't protest against these activities at the time they were advised of them. If it was purely because of politics, we should prosecute and jail them too, for covering Bush & company for political reasons.

Of course if they have to admit that they knew about these activities and didn't say anything, the only defenses they will have are the two following possibilities: 1) they were relying on the legal opinions of Yoo and company, in which case they (at least at the time) considered those opinions to be valid and legally binding, or 2) they are in agreement that the actions of the interrogators didn't constitute torture, and that is why they didn't protest those actions.

Either way, Yoo and company did their jobs, nothing more, nothing less, and are not guilty of anything.

Elliot

Although I said that I approve at this point a real broad no holds barred investigation ;I suspect the motives of those who want "investigations " and "prosecutions " or "truth commissions " . This is an exercise in get Bush et al if you ask me .

Those who want investigations prosecutions etc have a prejudiced presupposition that convictions would follow .
The defense would have a solid case to make, and a jury can easily be persuaded by being reminded of what was at stake in the aftermath of 9/11 that there is /was ambiguity of the laws and everyone was acting in good faith .
What happens then when no convictions occure . Would those who are demanding the loudest then be satisfied ? I think not.

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Originally Posted by tomder55

Those who want investigations prosecutions etc have a prejudiced presupposition that convictions would follow

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Hello again, tom:

I'm one of THOSE. However, me being me, I don't want to see convictions. I want to see a fair investigation and if a trial is warranted, I want to see a trial..

If we DO that, the outcomes of the trial aren't important. What's important is that we, as a nation said that what they did was illegal and we put them on trial for it...

Contrary to those who can't think beyond petty political retribution, there are people who want to insure that this abberation of history NEVER happens again. Count me among them.

My motives have nothing to do with Bush. It should be apparent to you by now, that I'm a much better person than you. My country stands above all.

excon