'Tis the gift to be simple, 'tis the gift to be free,
'Tis the gift to come down where we ought to be,
And when we find ourselves in the place just right,
'Twill be in the valley of love and delight.
When true simplicity is gain'd,
To bow and to bend we shan't be asham'd....
Petitioner Anthony Pitre, a Louisiana state prisoner, stopped taking his HIV medication to protest his transfer to a prison facility. He alleges that respondents at the facility punished him for this decision by subjecting him to hard labor in 100-degree heat. According to Pitre, respondents repeatedly denied his requests for lighter duty more appropriate to his medical condition, even after prison officials twice thought his condition sufficiently serious to rush him to an emergency room.This is the empathy we heard about, is it not?
The Magistrate Judge concluded that Pitre had been “‘hoist by his own petard’”...And that's not empathy.
The appeal comes at a tough time for Obama, who has been trying to shore up his liberal base ahead of the contentious congressional elections when his fellow Democrats are expected to lose many seats to Republicans. Democrats could lose control of the House of Representatives.To be fair, in his 2008 campaign, Obama said he was opposed to same-sex marriage. But, of course, people who wanted to believe he embodied the hope that they wanted to hope believed that he really, secretly, supported same-sex marriage. And he opposed DOMA:
A key concern has been whether those who have supported Obama in the past will show up to vote in the November 2 midterm elections. He has opposed same-sex marriages but supported civil unions and extended some benefits to gay partners of federal employees.
As your President, I will use the bully pulpit to urge states to treat same-sex couples with full equality in their family and adoption laws. I personally believe that civil unions represent the best way to secure that equal treatment. But I also believe that the federal government should not stand in the way of states that want to decide on their own how best to pursue equality for gay and lesbian couples — whether that means a domestic partnership, a civil union, or a civil marriage. Unlike Senator Clinton, I support the complete repeal of the Defense of Marriage Act (DOMA) – a position I have held since before arriving in the U.S. SenateIf you brightened at that February 2008 statement, did you perceive that if a court said the same thing — that DOMA is antithetical to federalism principles and to equality — that Obama would fight against that court decision? Obama only supports Congress repealing DOMA — did you notice that at the time? — and if Congress — the new Democratic Congress — applies its first burst of power in 2009 to other matters... well, too bad. Vote for them again in 2010 and maybe they'll do something for you some day. The arc of history is long!
Because if Barack Obama follows through with even half of the promises he made to the LGBT community during his campaign, he'll have done more to advance gay rights in this country than any President before him – combined.Remember how it felt in 2009, in the first spring of Obama's power? The NYT had an article titled "As Gay Issues Arise, Obama Is Pressed to Engage." My reaction was:
How can he rake in votes just by seeming to care about the rights and interests of gay people? Not even seeming all that much — he's against same-sex marriage! — but just by stirring hopeful feelings and looking like somebody who cares. Well, he's already done it once. Why shouldn't he believe that what worked once will work again?That was written in May 2009 — Springtime for Obama — and now it's Fall 2010. Things aren't so warm and sunny anymore, and now is when he needs to maximize the votes. Most Americans oppose gay marriage, and he can't alienate them, so won't you gay people (and you people who support them) continue to do what you're supposed to do and vote for those Democratic candidates? You know the Republicans won't help you. That's the grubby argument.
I will never compromise on my commitment to equal rights for all LGBT Americans. But neither will I close my ears to the voices of those who still need to be convinced. That is the work we must do to move forward together. It is difficult. It is challenging. And it is necessary. Join with me, and I will provide that leadership. Together, we will achieve real equality for all Americans, gay and straight alike.
Woodward asks about terrorism, terror attacks, and so forth. Obama says, "We can absorb a terrorist attack. We'll do everything we can to prevent it, but even a 9/11, even the biggest attack ever, we absorbed it, and we're stronger." That, to me, is the equivalent of Dukakis being asked, "If your wife were raped and murdered, would you favor the death penalty?" So Woodward says, "What about terrorism?" Obama figures, "Ah, we can handle it. We can absorb it. We're even stronger." That's not cool. That is cold, and it reminded me of something. One of my all-time favorite movies is Dr. Strangelove. A Stanley Kubrick movie. And one of the characters in this movie is General Buck Turgidson....Did he just call Turgidson a leftist?
And Buck Turgidson is one of these stereotypical generals. He just wants to nuke the world. He just loves war and hates the Russians, hates the commies. He just wants to nuke everything. And Buck Turgidson said, "Mr. President, we are rapidly approaching the moment of truth, both for ourselves as human beings and for the life of our nation. Now, truth is not always pleasant thing. But it's necessary now to make a choice: To choose between two admittedly regrettable but nevertheless distinguishable postwar environments, one where you get 20 million people killed, the other where you'd get 150 million people killed." Turgidson was saying, "Let's send more B-52s! Let's just wipe these people out while we're at it, since we can't call this one back. Let's just be rid of them. We'll kill 20 million of them and that's it. They can't kill any of ours. It's a livable situation, Mr. President."
Peter Sellers playing President Merkin Muffley says, "You're talking about mass murder, general, not war," and Turgidson replies, "Mr. President, I'm not saying we wouldn't get our hair mussed but I do say no more than ten to 20 million killed tops, depending on the breaks." Here's a guy totally cold and unaffected by the possibility of ten to 20 million people being killed in an accident and wants to say, "Let's go wipe 'em out even further." The president can't believe what he's hearing. You have Dukakis, "If your wife was raped and murdered, would you favor the death penalty?" "No, Bernard. As you know, I've long and consistently opposed the death penalty during all my life." Obama is asked, "Mr. President, what is your attitude on terrorism?"
"Well, we could absorb one of those, a terrorist attack. We'll do everything we can to prevent it but even a 9/11, but even the biggest attack ever we absorbed it and we're stronger. We can deal with it." All these examples are of leftists and they are cold, removed, unemotional, unaffected, uninvolved.
Senator Kyl [reads] Obama's empathy statement — you can read it here: In 5% of cases, Obama said, "adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon," and one must at that point rely on "one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy." Kagan is forthright: "It's law all the way down." She says that several times — and I note that her statement isn't really at odds with what Obama said. A good follow-up question would have been: But do you think that law includes a component that comes from deep values and human empathy? The secret answer is: Yes.If I had a written transcript, I would pick out one thing after another like that and write the text of the missing colloquy.
The struggle over control of the settlement has underscored two different, but not necessarily contradictory views of the judge: the compassionate jurist driven by a sense of social responsibility and with a wealth of experience with victims’ suffering, and the aggressive judge unwilling to cede ground on cases he has shepherded for years...
“This is history for him,” said Arthur Miller, a professor at New York University School of Law who specializes in federal procedure. “This is an awesome responsibility. He wants to be the person who brought peace to this entire situation. He would not be human if he didn’t feel a personal interest in this.”...
Donald A. Migliori, a lawyer for survivors in airline-related cases whose settlement amounts were reduced, said that such intervention was unusual in a non-class-action suit. “It’s a very frustrating thing for lawyers,” he said. “He’s guided by a concept of fairness that’s not in the law.”...
... John Feal, who works as an advocate for the 9/11 workers through his FealGood Foundation, counters that Judge Hellerstein himself has emerged as a ground zero hero.
“The judge is now like Elvis in the 9/11 community,” he said. “For years these guys have been neglected, and now there’s someone who cares.”
In federal racial harassment cases, one study found that plaintiffs lost just 54 percent of the time when the judge handling the case was an African-American. Yet plaintiffs lost 81 percent of the time when the judge was Hispanic, 79 percent when the judge was white, and 67 percent of the time when the judge was Asian American....More grist for the empathy/"wise Latina" conversation.
A second study, looked at 556 federal appellate cases involving allegations of sexual harassment or sex discrimination in violation of Title VII of the Civil Rights Act of 1964. The finding: plaintiffs were at least twice as likely to win if a female judge was on the appellate panel....
"We have been in contact with the Scottish government indicating that we objected to it," President Barack Obama said of Thursday's release.Indicating that we objected... Let me indicate that I find Barack Obama infuriatingly bland. Has he ever showed passion (this purveyor of empathy) – has he ever showed staunch resolve in the war on terror?
"We thought it was a mistake. We are now in contact with the Libyan government, and want to make sure that if in fact this transfer has taken place, he is not welcomed back in some way but instead should be under house arrest...."
The credibility of Barack Obama’s influence on the world is going to take at least as hard a knock. In the end, all the protests and all the diplomatic pressure from the White House counted for nothing. Scotland’s determination to return Megrahi to the bosom of his family and his homeland was not going to be blocked.
The rehabilitation of America’s standing in the world was going to be one of the great gains, if you remember, of the Obama election victory.... The President and his Secretary of State could do nothing - for all their administration’s supposed global prestige - to prevent what they considered to be an outrage. On yet another score, Mr Obama could not deliver the goods.
Grassley said his vote in part is based on second thoughts he has had about Souter, confirmed in 1990.Pit in my stomach? Oh, good lord, he really can't talk right. From Common Errors in English:
"I can say my vote for him is probably the only vote for 11 or 12 Supreme Court justices that has come back to haunt me from time to time," Grassley said. "I think Judge Sotomayor's very lukewarm answer that she gave me left me with the same pit in my stomach I had as a result of my vote for Souter."
Just as you can love someone from the bottom of your heart, you can also experience a sensation of dread in the pit (bottom) of your stomach. I don’t know whether people who mangle this common expression into “pit in my stomach” envision an ulcer, an irritating peach pit they’ve swallowed or are thinking of the pyloric sphincter; but they’ve got it wrong.So, Sotomayor either does or does not make judicial decisions emanating from empathy and Wise Latina experience, and Grassley feels his decisions in his stomach and when they feel like the part of a fruit that he shouldn't have eaten — or when he's haunted — he votes no.
KYL: Let me ask you about what the president said -- and I talked about it in my opening statement -- whether you agree with him. He used two different analogies. He talked once about the 25 miles -- the first 25 miles of a 26-mile marathon. And then he also said, in 95% of the cases, the law will give you the answer, and the last 5 percent legal process will not lead you to the rule of decision. The critical ingredient in those cases is supplied by what is in the judge's heart. Do you agree with him that the law only takes you the first 25 miles of the marathon and that that last mile has to be decided by what's in the judge's heart?
SOTOMAYOR: No, sir. That's -- I don't -- I wouldn't approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases. It's the law. The judge applies the law to the facts before that judge.
KYL: ... [H]ave you ever been in a situation where a lawyer said I don't have any legal argument to me, Judge, please go with your heart on this or your gut?
SOTOMAYOR: Well, I've actually had lawyers say something very similar to that. (LAUGHTER) I've had lawyers where questions have been raised about the legal basis of their argument. I thought one lawyer who put up his hands and said, but it's just not right. (LAUGHTER) But it's just not right is not what judges consider. What judges consider is what the law says.....
KYL: ... Have you always been able to have a legal basis for the decisions that you have rendered and not have to rely upon some extra-legal concept, such as empathy or some other concept other than a legal interpretation or precedent?
SOTOMAYOR: Exactly, sir. We apply law to facts. We don't apply feelings to facts.
With those feelers, it must be some sort of empathy beetle.
