The Sotomayor nomination isn’t out of the news yet so people are still arguing over what makes a good judge, and more specifically whether one of those things is empathy. Orin Kerr of the Volokh Conspiracy introduces a distinction between “doctrinally relevant” and irrelevant empathy. He says the former is not only good but necessary. I have no legal training, but I’m not a fan of even that. What is Breyer’s “balancing” talk if not that sort of evaluation of impact? The way I see it, judges are experts when it comes to the law, not “the real world” nor should they be expected to be. The Volokh gang have pointed out how it is the job of legislatures to engage in the sort of “balancing” that Breyer wants judges to do. For a judge to do more than accurately apply the law is to overstep their bounds. This is why I am not a big fan of the “law and economics” field of study which a number of judges have controversially taken lessons in. I’m not saying that L&E is harmful, just that like most people judges don’t need to know that sort of thing and if it comes to the point where such expertise is demanded of a judge, that indicates something has gone wrong. It is true that sometimes the law has been left vague. Legislators can write bad legislation (and may deliberately want to wash their hands of any responsibility) and that is just what I would consider it. Perhaps as more proof of my legal ignorance I find merit in this comment suggesting that judges simply “punt” on issues where the law is not clear. As a reductio, imagine that legislators had simply scribbled illegibly on a piece of paper and called it a law: one would hope no judge would consider the “language” controlling. They may request that the legislature clarify the law, as happened recently in response to the Ledbetter case. If we are to live under the rule of law rather than men, where one can expect it to be applied the same no matter who happens to be judging, such granting of discretion needs to be minimized.
The Austrian Economists highlight an op-ed from John Hasnas on why Bastiat’s ideas on the “seen vs unseen” should make us averse to sympathy in judges. John Hasnas is also the author of the anarcho-capitalist tract The Myth of the Rule of Law, which is mad, bad and dangerous to know. In the comments to the TAE post Mario Rizzo references a paper of his on “justice” vs “benevolence”, in keeping with his desire to move economics closer to philosophy and away from mathematics. I deem him also mad, bad and dangerous to know.
In completely unrelated news, I’ve finished Jaques Barzun’s “From Dawn to Decadence” and don’t really have anything to say about it. Culture just isn’t my bag. Up next is “The Theory of Evolution” by John Maynard Smith: a classic that should be more up my alley. I should get some posts out of that. In the meantime AK’s Rambling Thoughts has some conjectures on the origin of eukaryotes, bilateral body plans and more. At Dusk in Autumn a commenter fights back against the pablum I was taught in H.S about the medieval/Renaissance rich foolishly eating less healthy diets (especially when it came to bread) than the peasantry. Finally, via StatSquatch I found the blog of FeministX, who expects readers to be familiar with an HBD-blogger I had never heard of to estimate his/her IQ along with those of more well-known ones. The blogger is Engram.