Empathy Versus Law

by Walter Williams

President Obama's articulated criteria for his nominee to the U.S. Supreme Court is: "We need somebody who's got the heart to recognize -- the empathy to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old. And that's the criteria by which I'm going to be selecting my judges."

What is the role of a U.S. Supreme Court justice? A reasonable start for an answer is the recognition that our Constitution represents the rules of the game. A Supreme Court justice has one job and one job only namely; he is a referee. There is nothing complicated about this. A referee's job, whether he is a football referee or a Supreme Court justice, is to know the rules of the game and make sure that they are evenly applied without bias. Do we want referees to allow empathy to influence their decisions? Let's look at it using this year's Super Bowl as an example.

The Pittsburgh Steelers have won six Super Bowl titles, seven AFC championships and hosted 10 conference games. No other AFC or NFC team can match this record. By contrast, the Arizona Cardinals' last championship victory was in 1947 when they were based in Chicago. In anyone's book, this is a gross disparity. Should the referees have the empathy to understand what it's like to be a perennial loser and what would you think of a referee whose decisions were guided by his empathy? Suppose a referee, in the name of compensatory justice, stringently applied pass interference or roughing the passer violations against the Steelers and less stringently against the Cardinals. Or, would you support a referee who refused to make offensive pass interference calls because he thought it was a silly rule? You'd probably remind him that the league makes the rules, not referees.

I'm betting that most people would agree that football justice requires that referees apply the rules blindly and independent of the records or any other characteristic of the two teams. Moreover, I believe that most people would agree that referees should evenly apply the rules of the games even if they personally disagreed with some of the rules.

The relationship between Supreme Court justices and the U.S.

Constitution should be identical to that of referees and football rules. The status of a person appearing before the court should have absolutely nothing to do with the rendering of decisions. That's why Lady Justice, often appearing on court buildings, is shown wearing a blindfold. It is to indicate that justice should be meted out impartially, regardless of identity, power or weakness. Also, as Justice Oliver Wendell Holmes said, "Men should know the rules by which the game is played. Doubt as to the value of some of those rules is no sufficient reason why they should not be followed by the courts." The legislative branch makes the rules, not judges.

Interventionists often make their case for bending the rules based on the unfairness of outcomes such as differences in income, education and wealth. After all, how can the game of life possibly be fair when some people's yearly income totals in the hundreds of thousands, even millions of dollars, while many others scarcely earn twenty or thirty thousand dollars?

Some people find that argument persuasive but it's nonsense. Income distribution is an outcome and fairness cannot be determined by outcomes.

It's the same with football. The Steelers winning six Super Bowl titles and Arizona winning none is an outcome and cannot be used to determine football fairness. Fairness in either case must be settled by process questions such as: Were the rules unbiased and evenly applied? If so, any outcome is just and actions based on empathy would make it unjust.

From Moore's Law to Barrett's Rules

Intel's chairman on antitrust silliness and the secrets of high-tech success.

MICHAEL S. MALONE

Craig Barrett is spending the last days of his tenure as Intel chairman the same way he spent his previous 35 years at the corporation: moving at a superhuman pace that leaves exhausted subordinates in his wake.

Ken Fallin

Mr. Barrett has maintained this lifestyle since he replaced Andrew Grove as CEO of Intel in 1998. "Was it hard to follow a legend?" he asks himself in his typical blunt way, adding, "What do you think?" Mr. Barrett barely broke pace when he became chairman in 2005, and shows no sign of slowing even now, at age 69, as he faces retirement.

A big man with a big presence, he barely seems to fit in his tiny work cubicle -- an Intel tradition for senior executives dating back to the company's earliest days. We head for a tiny, windowless meeting room. He strides like a man accustomed to hiking over the Bitterroot Mountains, all the while talking about elk and mule deer. And when he sits down, he folds his big, calloused hands -- the hands of a rancher, not of the chairman of a $40 billion corporation -- leans forward, and nods at each question with infinite gravity. He doesn't hesitate to reply with "Oh come on" or "Do you really believe that?"

The latest thing that has him animated is the record $1.45 billion antitrust fine levied against Intel by the European Union this week. Mr. Barrett shakes his head and says, "The antitrust rules and regulations seem designed for a different era. When you look at high-tech companies, with the high R&D budgets, specialization and market creation they need to hold their big market shares, it's so very different from the old world of oil companies and auto makers that the antitrust regulations were designed for. They are out of sync with reality.

"And how do you reconcile European regulators, who don't believe that any company should have more than 50% market share -- even a market that company created -- with the way we operate here? Of course, now it seems as if our Justice Department is preparing to march in lock-step behind Europe. In the end, all they are going to do is create barriers to companies growing, entering into new markets, and bringing new technologies into those markets. And when we stop being the land of opportunity, all of those smart immigrant kids getting their Ph.D.s here are going to start heading home after they graduate. Then watch what happens to our competitiveness."

Mr. Barrett is legendary for a working week that begins at the Intel facility near Phoenix, where he has lived for a quarter-century ("I haven't been home for five days in a row in 20 years," he says) and moves Tuesday mornings to Santa Clara, Calif., and Intel headquarters -- with stops around the world (30 nations per year on average) in between. It's back to Phoenix on Thursday night and then off to Montana to hunt and fish at his celebrated Three Rivers resort. He returns to Phoenix late Sunday night.

After this interview, he will participate in his last Intel analyst meeting -- he retires on May 20 -- and then he will meet to discuss the company's response to the EU fine.

It hasn't always been this way. Mr. Barrett, one of the few leaders of Silicon Valley to have been born here (in San Carlos, just south of San Francisco), spent his early career as an academic close to home. "I only traveled seven miles to go to college at Stanford," he says. He earned his Ph.D. there, then joined the faculty as a professor of materials science and engineering. Mr. Barrett would go on to write more than over 40 technical papers dealing with the influence of microstructure on the properties of materials as well as a classic textbook in the field.

But Intel came calling in 1974 and he jumped to the corporate world, beginning as a manufacturing manager. His leadership skills and deep understanding of how chips were made proved vital to the struggling company during the years of vicious competition with Japan. Within a decade, Mr. Barrett was promoted to vice president. He was named executive vice president in 1990.

As Mr. Barrett himself admits, from the beginning he knew his career would be spent "in the shadow of the guys who preceded me" -- the legendary troika of integrated circuit co-inventor Robert Noyce; Gordon Moore, whose name is attached to the fundamental law of the digital age; and the celebrated business executive Andrew "Only the Paranoid Survive" Grove. Just as frustrating, Mr. Barrett began his career at Intel during a market crash, led the company during the dot-com crash, and now finds himself retiring during yet another market crash.

He waves his hand in a sine wave through the air, "That's how it is in this business. The endless boom-bust cycle -- I've been through eight of them. You just deal with what you're given . . . and develop a thick skin."

Still, if no catchphrase or law is likely to attach to Craig Barrett's name, his tenure at Intel, leaving the semiconductor industry's leading company even more dominant that when he arrived, offers a collection of important lessons. Call them Barrett's Rules.

- The business is bigger than the business. Mr. Barrett has long recognized that, with a company as large and influential as Intel, governments and cultural forces loom as large as any competitor. That's why, when Intel was being battered by Japanese competitors in the early 1980s, he took his fellow managers to Japan to visit everything from manufacturing plants to corner markets to show them how to build in quality.

For the same reason, Mr. Barrett has made education his personal crusade, from backing Intel's global science fairs to giving (with his wife Barbara, the former U.S. ambassador to Finland) $10 million to Arizona State to create an honors college. He brings his usual bluntness to this work as well, recently saying that America's second-rate educational system will lead to "the decline and fall of the United States as an economic power."

By the same token, like most Silicon Valley executives, he's been a strong proponent of investment in basic research. He notes with no little irony that he may be getting his wish in the most unlikely way: "After all of these years of asking for an increase in the National Science Foundation budget and how do we finally get it? With an investment banking crisis!"

- Don't mess with Moore's Law. This metronome of the digital age, says Mr. Barrett, isn't really a law, but "a social contract, a road map, a sign post. It's something to hang in front of the bright, bushy-tailed new young graduates and tell them: 'We've kept this thing going for 40 years now, so don't screw it up' -- and by God, they don't."

Inevitably, Mr. Barrett says, every few years "some company will say, 'What's with the pell mell rush to improve our technology every two years? Let's slow down to say, four years, and only have to invest half as much capital.' It always sounds like a cool idea, and it always ends up with that company losing market share."

Mr. Barrett has personal experience. Early in this decade, Intel hung on to the Pentium IV microprocessor too long and watched smaller competitor Advanced Micro Devices (AMD) gobble up half the market. Mr. Barrett sent out a blistering, all-hands memo that still makes employees shudder. "We won't let that happen again," he says, with finality.

- Invest during hard time s. The two most controversial decisions Mr. Barrett made as Intel CEO were: 1) to take the company, largely by acquisition, into the communications business; and 2) to maintain the company's traditional level of capital investment right through the darkest days of the dot-com bust. Of the former, he just shrugs, "I bought high and sold low. But at least money was cheap in those days." But history has shown that the latter decision -- for which Mr. Barrett took a lot of flak (he uses an earthier term) -- may have been the most brilliant of his career. Intel not only came out of the downturn faster and stronger than its competitors but still had a capacity shortage, which could have been devastating had Mr. Barrett not made the investment.

- Consensus is good -- except when it isn't . "I remember being in a meeting at one of our plants with 21 of our manufacturing managers. We started talking about changing our factory model and one of the veteran managers -- one of those guys who kind of ran his own little kingdom like a prince, said, 'Are we going to discuss this? Are we going to get a vote on this?' And I said, 'Yeah, we'll vote -- the only problem for you is that I get 22 votes.' In other words, there's a time to let everyone twist the knobs and a time to make a decision."

- Follow the business, not Wall Street . "The job of the CEO is not to reward the short-term speculator of your stock," Mr. Barrett says, "but to do a good job long-term for your shareholders, employees and customers. You don't invest for 'let's have a 20% lay-off tomorrow to prop up our stock' or 'let's cut R&D to get a positive response from Wall Street.' Thank God for Moore's Law, because it won't let us think like that; because if we do we get hammered."

- When something works, don't re-invent it, reproduce it . Perhaps Mr. Barrett's greatest contribution to the semiconductor industry was the concept of "Copy Exactly," the absolutely exact reproduction of successful existing practices and facilities in other locations. Copy Exactly has been the key to Intel and other chip companies actually improving yield rates (the ratio of chips that actually work) even as the products themselves have become thousands of times more complex and miniaturized and fabricated by the millions. The decision not to reinvent the wheel every time was, in fact, the subject of that contentious meeting where Mr. Barrett outvoted his managers. "I got the idea from McDonald's," he says. "I asked myself why McDonald's french fries tasted the same wherever I went. That's what I told my guys, "We're going to be the McDonald's of semiconductors."

- It pays to have good competitors. Despite AMD's victory with the EU, Mr. Barrett has nothing but praise for Intel's competitors, which have ranged over the years from Motorola to NEC to Samsung to, always, AMD. "It's like athletes: To be a great company you need great competitors," he says. "It's what keeps you alive and keeps you honest."

Mr. Barrett hops up from his chair. He needs to get to the analysts meeting in another building. But before he leaves, he pulls out a photograph, saying, "Hey, look at this." It shows a grinning Barrett cradling a gigantic trout he has just caught while fly fishing in South America, "Lemme tell ya," he says, gesturing like he's working the fly pole, "That guy was so close I had to let him swim away before I could set the fly down in front of him." Then Craig Barrett is gone, striding purposely down the long hallway.

Mr. Malone's new book, "The Future Arrived Yesterday," will be out next week from Crown Business.

'Empathy' Versus Law

'Empathy' Versus Law
By Thomas Sowell

Justice David Souter's retirement from the Supreme Court presents President Barack Obama with his first opportunity to appoint someone to the High Court. People who are speculating about whether the next nominee will be a woman, a Hispanic or whatever, are missing the point.

That we are discussing the next Supreme Court justice in terms of group "representation" is a sign of how far we have already strayed from the purpose of law and the weighty responsibility of appointing someone to sit for life on the highest court in the land.

That President Obama has made "empathy" with certain groups one of his criteria for choosing a Supreme Court nominee is a dangerous sign of how much further the Supreme Court may be pushed away from the rule of law and toward even more arbitrary judicial edicts to advance the agenda of the left and set it in legal concrete, immune from the democratic process.

Would you want to go into court to appear before a judge with "empathy" for groups A, B and C, if you were a member of groups X, Y or Z? Nothing could be further from the rule of law. That would be bad news, even in a traffic court, much less in a court that has the last word on your rights under the Constitution of the United States.

Appoint enough Supreme Court justices with "empathy" for particular groups and you would have, for all practical purposes, repealed the 14th Amendment, which guarantees "equal protection of the laws" for all Americans.

We would have entered a strange new world, where everybody is equal but some are more equal than others. The very idea of the rule of law would become meaningless when it is replaced by the empathies of judges.

Barack Obama solves this contradiction, as he solves so many other problems, with rhetoric. If you believe in the rule of law, he will say the words "rule of law." And if you are willing to buy it, he will keep on selling it.

Those people who just accept soothing words from politicians they like are gambling with the future of a nation. If you were German, would you be in favor of a law "to relieve the distress of the German people and nation"? That was the law that gave Hitler dictatorial power.

He was just another German chancellor at the time. He was not elected on a platform of war, dictatorship or genocide. He got the power to do those things because of a law "to relieve the distress of the German people."

When you buy words, you had better know what you are buying.

In the American system of government, presidential term limits restrict how long any given resident of the White House can damage this country directly. But that does not limit how long, or how much, the people he appoints to the Supreme Court can continue to damage this country, for decades after the president who appointed them is long gone.

Justice John Paul Stevens virtually destroyed the Constitution's restrictions on government officials' ability to confiscate private property in his 2005 decision in the case of "Kelo v. New London"-- 30 years after President Ford appointed him.

The biggest danger in appointing the wrong people to the Supreme Court is not just in how they might vote on some particular issues-- whether private property, abortion or whatever. The biggest danger is that they will undermine or destroy the very concept of the rule of law-- what has been called "a government of laws and not of men."

Under the American system of government, this cannot be done overnight or perhaps even during the terms in office of one president-- but it can be done. And it can be done over time by the appointees of just one president, if he gets enough appointees.

Some people say that who Barack Obama appoints to replace Justice Souter doesn't really matter, because Souter is a liberal who will probably be replaced by another liberal. But, if no one sounds the alarm now, we can end up with a series of appointees with "empathy"-- which is to say, with justices who think their job is to "relieve the distress" of particular groups, rather than to uphold the Constitution of the United States.

JUDGE NAPOLITANO: The Octuplets, Their Mom and the Law

JUDGE NAPOLITANO: The Octuplets, Their Mom and the Law

By Judge Andrew Napolitano
FOX News Senior Judicial Analyst

With new details emerging about the California mother who gave birth to octuplets, a list of ethical and legal questions is being raised and the answers may generate legal fallout for both her and the clinic that implanted the embryos.

The mother has done a positive good by bringing these children into the world. Life is superior to non-life. Human souls are eternal. Every human life is of potentially infinite value. The God who gave us life reflects His glory through each one of us.

The issue here is one of medical ethics. The ethical rules in this instance were drafted by the medical profession in order to protect the health and life of the babies and the mother. Since the basic medical ethics rule is “First, do no harm,” and since this number of babies could do harm to the mother, the first legal inquiry is who did what. — Who implanted the embryos and how many were implanted?

It is not unlikely that two or three frozen embryos were implanted into the mother, and that they naturally split into triplets and twins. Such an implantation in a healthy 33-year-old woman would not be violative of medical ethics. However, the knowing intentional implantation of eight embryos would violate medical ethics and subject the physician who did so to professional discipline. The severity of the discipline would depend on whether the mother or any of the babies suffers permanent injury.

While medical ethics are enforced by the courts of the states in which the physicians are licensed, they are not criminal procedures, and their enforcement is limited to affecting the physician’s professional privileges, not a loss of liberty or property.

It is my view that if the mother received three implants, a number that is acceptable from a medical ethics point of view, and the embryos split into triplets and twins, there is no medical ethics issue here and there is no charge of irresponsibility against the mother.

If, on the other hand, she did receive eight embryos, that could jeopardize her life and health as well as the life and health of the babies, since it is clearly unethical to perform that many implants. Nevertheless, I would argue, if the mother is now healthy and if the babies survive this post-natal period, then there is no harm and thus no foul.

Notwithstanding all of the above, the mother has done a positive good by bringing these children into the world. Life is superior to non-life. Human souls are eternal. Every human life is of potentially infinite value. The God who gave us life reflects His glory through each one of us.

Whatever the medical-ethical issues, there is no legal wrong doing on the part of the mother, as she is not subject to the jurisdiction of any state medical licensing boards, and there is no law prohibiting having 14 children. There may have been wrong doing on the part of the physicians. There is no actual legal limit on the number of embryo implantations permitted. However, the rules in all 50 states say you can’t implant such a number of frozen embryos that would jeopardize the life of the mother or the embryos to be carried to term. It’s a guideline.

So the question is who did what when? The government and the medical ethics authorities in California will subpoena the records of the fertility clinic where the procedure was done to verify how many embryos were implanted, whether or not the doctor violated medical ethics, and what the natural progression of Nadya Sulemans’ body did to the embryos.

A large part of any legal recourse depends on whether Ms. Suleman had informed consent. It also depends on whether the physicians told her in writing and whether she understood the jeopardy to her body and to her babies of having eight implanted embryos. The good news is if she is healthy and if the eight babies are healthy, then any chance of a legal action fades away.

Judge Andrew Napolitano, who was on the bench of the Superior Court of New Jersey between 1987 and 1995, is the senior judicial analyst at the FOX News Channel. His latest book is “A Nation of Sheep.”

Obama and Guantanamo

Fighting terrorism is simpler when you're a candidate.

Campaign promises are so much easier to adhere to when they're strictly hypothetical, as Barack Obama is discovering. The then-President-elect said 10 days ago on ABC that while he still plans to close Guantanamo, "it is more difficult than I think a lot of people realize" and that "many" of the enemy combatants are "very dangerous."

AP

Merely for gesturing at this reality, Mr. Obama suffered the blunt-force trauma of his left-wing allies, and the panicked transition leaked new details on the Administration's intentions last week. On Tuesday the Pentagon halted military commissions at Guantanamo for 120 days, and reports as we went to press yesterday said Mr. Obama would sign an executive order today that the base be closed within a year. This was after he told the Washington Post that closure might take even longer. Isn't responsibility fun?

The first practical question is where to transfer Khalid Sheikh Mohammed and the 245 or so other remaining Gitmo prisoners. Dangerous enemy combatants can't simply be released into the streets. The Obama camp says that after reviewing the classified files, it will try to repatriate as many as safely possible. But 60 already cleared for release remain because they may be persecuted by their home countries. And even Mr. Obama's vaunted diplomacy is unlikely to convince rights-protecting countries to resettle people he believes are too dangerous to release in the U.S. -- and the more willing Mr. Obama is to release prisoners, the more difficult this problem will become.

One suggestion is moving the remaining prisoners to Kansas's Fort Leavenworth, but state politicians are already sounding a red alert. The military base is integrated into the community and, lacking Guantanamo's isolation and defense capacities, would instantly become a potential terror target. Expect similar protests from other states that are involuntarily entered in this sweepstakes.

In any event, this option merely relocates Guantanamo to American soil under another name. The core challenge is not a matter of geography but ensuring a stable legal framework for detaining and punishing fighters engaged in unconventional warfare against the U.S.

In the Military Commissions Act of 2006, the Bush Administration and Congress painstakingly set thresholds for who can be detained and under what rules. Mr. Obama argues that work was flawed and that the trials should not continue in their present form. But he also said in his ABC sitdown that he wants to create "a process that adheres to rule of law, habeas corpus, basic principles of Anglo-American legal system, but doing it in a way that doesn't result in releasing people who are intent on blowing us up."

Sounds great. But this "balance" is difficult to strike because many of the Guantanamo prisoners haven't committed crimes per se but are dedicated American enemies and too dangerous to let go. Other cases involve evidence that is insufficient for trial but still sufficient to determine that release is an unacceptable security risk.

The stock anti-antiterror position is that detainees should be charged with crimes, either through military courts-martial or (preferably) the ordinary criminal justice system. Anyone who can't be indicted should be set free. But such trials are unworkable even for the 70 or 80 detainees that prosecutors had planned to try with military commissions, let alone prisoners who are too dangerous to release but for which there isn't sufficient evidence for a tribunal, much less civilian courts. Critics like to point to aggressive interrogations as somehow tainting these cases, but the real problems are far more prosaic. For instance, any evidence probably can't be admitted in civilian courts because terrorists aren't read their Miranda rights when picked up in combat zones.

An alternative to military commissions that is gaining political traction is the idea of a national security court, composed of Article III judges to supervise detentions and administer trials. There are real risks here. Politically, it will cost time and capital that Mr. Obama probably prefers to spend elsewhere. Practically, any new system is likely to face the same legal challenges from the white-shoe lawyers at Shearman and Sterling and anti-antiterror activists that for years tied down military commissions.

But legal experts across the political spectrum including Harvard's Jack Goldsmith, the Brookings Institution's Ben Wittes and Georgetown's Neal Katyal advance this option as a way to restore "credibility" to the detainee process. The national security court would operate under rules of evidence and classification that would allow the military to avoid compromising intelligence sources and methods, as well as admit intelligence gathered under battlefield conditions.

Then again, such rules would be almost identical to those now used in . . . George Bush's military commissions. On wiretaps, interrogations and now Gitmo, the new Administration is discovering that the left-wing attack lines against Bush policies are mostly simplistic illusions. Now those critics are Mr. Obama's problem.