What question would you most like to ask Judge Sotomayor?

Define your own sense of a justice’s capacity in juridical decision making

Judge, much cartoonish coloring outside the lines has already taken place over the president’s characterization of looking for a justice for the Supreme Court who possesses empathy as a subset characteristic to the justice’s respect for law, precedent, and the Constitution. Would you define your own sense of a justice’s capacity in juridical decision making in light of the following characterizations: 

1) President Obama’s statement about empathy just mentioned,

2) President George H.W. Bush’s characterization of your potential future colleague, Clarence Thomas, as a jurist who is an “intelligent person who has great empathy,”

3) former Senator John C. Danforth of Missouri’s further articulation of that point, that then-Judge Thomas’s “empathy is with the disadvantaged people of this country, [that he] would bring a perspective to the Supreme Court which nobody else brings,”

4) Justice Thomas’s implication, during his nomination hearings, that because he was born into poverty in Georgia he would look out for the underdog, even a convicted one with fewer rights, 

5) Justice Alito’s point of self-definition in his nomination hearing that ” I have been shaped by the experiences of the people who are closest to me, by the things I’ve learned from Martha, by my hopes and my concerns for my children, Philip and Laura, by the experiences of members of my family, who are getting older, by my sister’s experiences as a trial lawyer in a profession that has traditionally been dominated by men. And, of course, I have been shaped for the last 15 years by my experiences as a judge of the court of appeals,” 

6) Justice Alito’s additional point about empathizing with women on the issue of abortion, “Like many, I have thought about this issue of abortion time and again. It is not an easy issue for most people. I thought about the law, the impact of my personal religious beliefs and feelings, I thought about the real lives of people and the tragic experiences of the women I have met,” 

7) And, finally, Justice Oliver Wendell Holmes’ famous maxim, “the life of the law is not logic but experience.” 

In light of these characterizations of the importance of empathy in a jurist’s intellectual makeup, would you please tell us your view of the relationship between compassion and justice? 

This post originally appeared on Politico’s Arena.

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Obama defends Obama, while Cheney defends Cheney

The president affirmed today the American view that we are at war with al Qaida and that all means of counter-terrorist actions are in play

Symbols: President Obama speaks in a building that houses the United States Constitution, a document that is built on the ideal and dedication “to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare,” while former Vice President Cheney addresses the American Enterprise Institute, the conservative think tank dedicated to “strengthening the foundations of freedom–limited government, private enterprise.”

Law: The president sees the Constitution as a window through which to view reality, while the vice president sees the Constitution as a mirror to conform to an ideology. The interpretor is open to compromise; the ideologist is not. That’s one thing that irks both liberals and conservatives about President Obama. To put it politely, he adapts.

Frames of mind: The president calls the terrorists a “nimble enemy,” while the vice president characterizes them as “killers.” Both are judgments. One conceives of political evolution, the other does not.

Weaknesses: The president keeps saying none of this was his fault. He’s the president now. He needs to move beyond that point. But the vice president keeps saying he’s not at fault, that “the interrogations were used on hardened terrorists after other efforts failed.” Cheney’s description is in dispute–and by my analysis, inaccurate and misleading–and there exists public testimony from military interrogators that refutes his claim.

Is there a difference between the two positions on terrorists or Guantanomo? Actually, not much.

The vice president disapproves of the Obama decision to close Guantanamo, but the Bush administration also made it quite clear that its intention was to close Guantanomo. Perhaps the vice president’s viewpoint on this action was rejected during the last administration, but now he’s free to articulate it in public.

The Obama administration is dismantling very little of the Bush anti-terrorist polices, in fact. The vice president says the Obama administration views the conflict with terrorists only as a criminal matter. Not true.

The president affirmed today the American view that we are at war with al Qaida and that all means of counter-terrorist actions are in play, including military and civilian criminal avenues and approaches. In fact, the president and the vice president aren’t the only ones who view the conflict as a state of war. So too do the other branches of government.

The vice president supports holding enemy combatants without trial indefinitely and implies that the president is opposed to this action. Not true.

Two months ago the Obama Justice Department reaffirmed the following power of the president to hold enemy combatants without trial: “The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain person who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners….”

The vice president says we only tortured a few prisoners. This could be true but we don’t know. We do know that, for the sake of argument, the few prisoners the vice president describes us torturing were tortured hundreds of times. A rose by any other name…

But the interrogation community today rejects that approach to interrogations, in particular at Guantanomo. Today, nearly half of the prisoners at Guantanomo have voluntarily entered into interrogation. That’s the only way in which an interrogation can occur, in fact. The authorities no longer force interrogations. Why? According to one official, why haul someone into questioning against his will if he’s just going to stare at the floor in silence the whole time?

This post originally appeared on Politico’s Arena.

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Coming Home

“Document the Return of U.S. War Dead” 

“In 1991, President George H. W. Bush implemented a ban on media coverage of returning war dead and their dignified transfer process at Dover Air Force Base, Delaware. Shortly after he assumed office, President Barack Obama asked Defense Secretary Robert Gates to review this policy, and Gates later reversed it, giving family members of the fallen the right to allow or disallow media coverage. On April 5th, 2009, the repatriation of the remains of Air Force Staff Sgt. Phillip Meyers became the first such event to be covered by the press in 18 years. This process has taken place, undocumented, over 5,000 times since the beginning of the war in Afghanistan in 2001. Collected here are photographs documenting the transfers of nine soldiers that have taken place since April 5th, 2009.”

from The Big Picture

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