Empathy? Really?

[acroyear]

Sotomayor's Empathy. Or Not. : Dispatches from the Culture Wars:

The New York Times has the story of a ruling from Judge Sotomayor that certainly did not show anything resembling the empathy Obama says he wants in a judge. And it involves an issue I feel very strongly about, access to DNA testing to prove the innocence of someone convicted of a crime.

Jeffrey Deskovic was convicted at 16 years old for the rape and murder of a classmate that he did not commit. He was freed from prison in 2006, having spent half his life locked up. DNA evidence proved that another man, already in prison for another murder, was guilty of that crime and the man admitted it after the testing matched his DNA.

So what does Sotomayor have to do with this? She refused to grant him an appeal in 2000 because of a procedural technicality

[...]

Empathy indeed. Especially appalling for a member of a racial minority who grew up poor given that such false convictions involve underprivileged blacks and Hispanics. Deskovic has an op-ed at Politico. He writes:

I would like an opportunity to testify at Sotomayor's confirmation hearings to let the senators -- and the country -- know that we need a Supreme Court justice who understands the problem of wrongful convictions and is ready to correct them where the facts deem it necessary. Procedure should never be used as an excuse to override justice. The state must not be permitted to take away an individual's liberty and later argue that his or her actual innocence is no longer relevant. Truth-seeking is central to our understanding of justice.

In my case, Judge Sotomayor did not demonstrate that understanding. If that is her idea of "empathy," a trait that Obama sought in his appointee, then God help us all, especially those who are wrongfully convicted and possibly sentenced to death. Innocence can never be ruled as out of order in court.

It is not about politics, nor race. It is about justice. Those of us concerned with wrongful convictions and justice should get the opportunity to verbalize our opposition to her confirmation.

Sounds reasonable to me.

It's for similar reasons, the policy of process over justice, that I can't stand the "standing" rules where you have to prove your specific own constitutional rights were violated before you can sue the government over their unconstitutional actions. The standing rule as established by SCOTUS was done to help limit the number of grievance cases before the courts that would otherwise flood them.

Well, gang, there's a much easier way to deal with constitutional issues without taking away our right to redress:

Actually make the government to follow the constitution they swore to uphold. If you let every case in and actually evaluate them all on the real merits rather than just on standing*, then the governments would actually have a much better idea of what they can and can't do, and theoretically might not take such blatantly unconstitutional actions: they would reduce the number of cases by actually following the law before them because you did your job to enforce it.

*e.g., the father of the child who sued to get rid of the unconstitutional "Under God", who lost the case merely because he's not the primary care-giver??? - no discussion of merit or constitutionality at all, just a "you don't count, so we don't have to listen to you", and hundreds of thousands of dollars wasted.

Comments

[bkleber.livejournal.com]

If you let every case in and actually evaluate them all

How many cases are submitted for consideration by the Supreme Court every year? How many are actually heard?

I think that just as there are important or worthwhile cases that don't get heard, there are plenty that are avoided - and well-avoided, at that.

"Under God" is unconstitutional? "Of course! Separation of Church and State!" The court was choosing to pass up judging on the issue of whether that was indeed case of separation of church and state. Our money bears "In God We Trust" - that's no more constitutional than including the words "under god" in the pledge, is it? (Of course, in my schools, anyone that felt strongly about that phrase simply inhaled during it, instead of speaking.)

[scifantasy.livejournal.com]

How many cases are submitted for consideration by the Supreme Court every year? How many are actually heard?

From http://www.america.gov/st/usg-english/2008/July/20080814211720XJyrreP0.5789301.html

"In recent terms (a term runs from October to June), petitioners have submitted and paid the filing fee in connection with an average of 1,825 petitions. Of these, an average of 80, or roughly 4 percent, have been granted. At the same time, more than 6,000 in forma pauperis [in the form of a pauper], petitions (petitions by persons who cannot afford to pay the filing fee, primarily prisoners) have been filed. On average, only five of these are granted annually."

The court was choosing to pass up judging on the issue of whether that was indeed case of separation of church and state.

Largely, one suspects, because the makeup of the Court wouldn't be friendly to the argument, and no precedent is a helluva lot better than negative precedent.

[acroyear70.livejournal.com]

I'm not saying SCOTUS has to hear them all, just that SCOTUS (and the lower courts) shouldn't just throw them out on standing issues - refusing to hear what an appeals court ruled (thus letting the appeals ruling stand) is still part of the process.

A case can still get thrown out because it doesn't have any merit (like, say, the continuing cases of bull saying Obama isn't a citizen). but throw it out on merit, not on standing.

[bkleber.livejournal.com]

Throwing it out on merit is still expressing an opinion - and the court is incredibly careful how and when it chooses to express an opinion. Declining to state an opinion may still be the safest choice.

Prosecutor: (holding up a photo for the witness to see) "Did you sleep with this man in Memphis, TN?"
Witness: "I decline to answer the question."
Prosecutor: (holding up a photo for the witness to see) "Did you sleep with this man in Austin, TX?"
Witness: "I decline to answer the question."
Prosecutor: (holding up a photo for the witness to see) "Did you sleep with this man in Atlanta, GA?"
Witness: "I decline to answer the question."
Prosecutor: (holding up a photo for the witness to see) "Did you sleep with this man in Washington, DC?"
Witness: "No."

[voltbang.livejournal.com]

What gets me is the part where some of the situations, there is no way to show that you are the injured party, and thus no one can ever have standing to make an appeal.

To use a local example, here in VA, possesion of a radar detector is illegal. Only state in the union. It appears to be bad law, but last I heard, it had never gone to the supreme court. VA has systematicly, delayed and harassed people who have attempted to bring such a case, and eventually, dismissed the charges before any case has made it all the way to the supreme court. Dismiss the charges, no conviction. No conviction, no standing. No standing, no supreme court ruling and radar detectors remain illegal. I do understand that it is much more rare that they require people to run over their radar detectors with thier own cars to avoid arrest.