I did not call you a Nazi.

Oh, nooooo. You only said I'd fit right in at the conference of high-ranking Nazi officials where they discussed the final solution for the Jewish problem. How could I have misinterpreted that so badly?

I just was pointing out that your intense desire for the legal system to be berift of empathy

Jeez-us, people. It is not MY desire, or MY theory. For the last time, from the New York State pattern jury instructions:

Whatever your verdict might be, it must not rest upon baseless speculations. Nor may it be influenced in any way by bias, prejudice, sympathy, or by a desire to bring an end to your deliberations or to avoid an unpleasant duty.

See it, there? Wedged in right there next to those other excellent attributes, bias and prejudice?

I didn't make this shit up. It's the law.

Here is the US federal judge oath of office:

I do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as under the Constitution and laws of the United States. So help me God.

And the wingnuts are having a field day with "empathy", and having an effect on the discourse that is to their benefit, which they would not have had Obama used better language. This isn't my fear, this is what's happening as we speak.

Until we have nothing but predetermined sentences for all offenses, where no mitigating factors are taken into account, "empathy" in a judge will be part of the process.

So how do you feel about this outcome: at sentencing the judge feels more empathy for the victim or the victim's family than she feels for the defendant, and gives a harsher sentence than is warranted. Does that sound like justice to you?

All (good) judges taken human factors into account. That's part of being fair and impartial.

I will note, a lot of people here seem fixated on sentencing of defendants in drug offenses, as if that is the only thing a judge does.

To explain my particular viewpoint, I haven't tried a drug case in years. I only deal with very serious, very violent crimes, and defendants with terrible criminal histories. In my cases, sympathy/empathy for the victims is more of a threat to justice than sympathy for the defendant.

A trial jury (or judge, in a bench trial) finds the facts and applies the law, as instructed by the court, to the facts.

An appellate judge, which is what a SCOTUS justice is, essentially takes the place of the jury at the appellate level and applies the law to the facts (as they were found below).

That's why the US federal judicial oath of office, that I posted earlier, includes the charge to "administer justice without respect to persons" - although many of you wish it was the opposite - which I construe as being essentially equivalent to the sympathy charge.

In any event, his use of the "E" word was ill-advised. The idiot right-wingers are using it to distort the issue.

BTW, none of this should be taken to mean that I fear Sotomayor specifically (I don't appear before her or know much about her yet but from what I heard she sounds fine) or more genreally that Obama will pick an ultraliberal moonbeam wacko. From what I know of the man, I fully expect a very moderate, centrist choice.

This is not true. They do not essentially take the place of a jury. A jury's job is to determine guilt or innocence. That's it.

This is not accurate.

A jury's (or a judge's, in a bench trial) role is to find the facts and then apply the law to those facts to reach a verdict.

In a criminal trial, that result is guilty or not guilty (not "innocence") and in some jurisdictions, the penalty.

In a civil trial, the finder of fact will determine liability, perhaps award damages, or decide whatever the issues are.

But let's not get too cute about it. At trial, the jurors decide the case, at the appellate level, the judges decide the case. Sympathy and empathy are inappropriate considerations in either case.

Let's be honest, shall we? There was a kerfuffle when a case involving Scalia's quail-hunting buddy Cheney was approaching the SCOTUS, and we all wanted Scalia to recuse. Right?

Why?