Conservatives have been trashing the so-called “empathy standard” for a while now, but mostly because President Obama said he wanted a judge with the ability to “empathize” with individual people whom would be affected by their rulings. I’ve written before that conservatives aren’t so much opposed to empathy as much as they’re opposed with who liberals empathize with, and that’s actually become pretty clear in this hearing. Senator Tom Coburn literally asked Kagan to have some “empathy with those of us that feels there’s a low confidence right now in the institutions of government.”
The most egregious though, has been Jeff Sessions, who on Monday told Kagan “What I’m having difficulty with is why you would take the steps of treating the military in a second-class way, to speak to rallies, to send out e-mails, to immediately, without legal basis — because the Solomon Amendment was never at any time not in force as a matter of law.” Sessions, in the above sentence, has embraced disparate impact theory as fervently as any campus liberal. By enforcing a blanket policy preventing employers who didn’t meet Harvard’s anti-discrimination standard from using the career services office, Sessions claims Kagan was deliberately treating the military in a “second-class way.” If only Sessions could apply this logic to say, the crack/powder cocaine sentencing disparity.
Igor Volsky noted the irony of Sessions defending Don’t Ask Don’t Tell by accusing Kagan of treating the military as “second-class” rather than those service-members forced to conceal their orientation in order to serve. But again, your perspective on this depends on whom you empathize with.
Sessions also compared the Citizens United case to Brown v. Board of Education. Philip Klein protests, arguing that all Sessions wanted to do was cite an instance in which overturning precedent was justified. But look, part of the point of citing Brown is to lend a certain moral legitimacy to your argument for overturning precedent, Sessions is obviously trying to appeal to the understanding that school segregation was a grave injustice, just like campaign finance reform.
The other thing is conservatives can’t have it both ways on this. Conservatives see Brown as the part of an era of judicial activism that is just now being rectified by the conservative majority on the court–indeed they celebrated its demise. You can’t then turn around and cite Brown as an example of a precedent justly overturned.
