The Empathy Dodge

The nomination of Sonia Sotomayor is sure to touch off a partisan battle over what has come to be known as  President Barack Obama's "empathy standard" for nominating judges. In a speech to Planned Parenthood in 2007, Obama codified his desire for a Supreme Court justice who would have some idea of what life is like for the unfortunate. "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom,'' Obama said.

This concern was what led then-Sen. Obama to vote against the confirmation of Chief Justice John Roberts in 2005. In "95 percent of cases," Obama said, the language of the statute in question would be enough to lead a judge of any ideological stripe to the proper conclusion. But in what Obama called the "five percent" of "hard cases," he argued that "the critical ingredient is supplied by what is in the judge's heart."

Conservatives have interpreted this to mean that Obama seeks judges who will act in a narrow partisan interest. "[Obama] said that a judge has to be a person of empathy," Sen. Orrin Hatch said on ABC's This Week in early May. "What does that mean? Usually that's a code word for an activist judge." At

National Review, Wendy E. Long, a former clerk for Clarence Thomas, wrote that Sotomayor was "a liberal judicial activist of the first order who thinks her own personal political agenda is more important that the law as written." Former Arkansas Gov. Mike Huckbee released a statement saying Sotomayor's nomination was "the clearest indication yet that President Obama's campaign promises to be a centrist and think in a bipartisan way were mere rhetoric." Hatch, for his part, offered Sotomayor a gracious congratulations.

In recent weeks, conservatives have turned "empathy" into a talking-points staple in order to preemptively cast doubt on whomever Obama picked to replace Souter. They characterize liberal justices as bleeding hearts intent on reading ephemeral rights into the Constitution while conservative jurists are merely content to interpret the law.

But the conservative justices on the court -- Anthony Kennedy, Antonin Scalia, Samuel Alito, John Roberts, and Clarence Thomas are not emotionless robots able to interpret the law without bias or personal experience coloring their rulings. They don't lack empathy; they simply don't empathize with the people Obama or liberals might like them to. Conservatives want their justices to empathize with the religious, the unborn, and powerful corporate interests. Liberals want their justices to empathize with women and minorities, workers and the downtrodden.

For all the pearl-clutching horror coming from the right, the conservative legal movement has picked its plaintiffs carefully, with an eye toward catching the winds of public opinion through sympathetic plaintiffs such as Frank Ricci, the white firefighter who was denied a promotion, or Terri Schiavo's parents, Robert and Mary Schindler, who sought to keep Schiavo on life support despite her husband's claim that she expressed a desire not to be kept alive in a persistent vegetative state. Empathy is an important element of the conservative legal movement on both sides of the bench. Most recently, it's been conservatives who have been arguing for empathy for the architects and perpetrators of torture on the grounds that they broke the law ostensibly in the interest of the country, while liberals have called for rigidity in upholding laws against torture.

While some conservative justices, such as Kennedy, have been more emotive than others, emotion and perspective have always shaped the Supreme Court's opinions, particularly in cases involving the issues conservatives care most about, such as abortion, gay rights, and affirmative action. In his opinion in Gonzales v. Carhart, the case that upheld bans on partial birth abortion, Justice Kennedy memorably wrote, "While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained." While Kennedy cited precedent in his opinion, it was nonetheless clearly guided by his paternalistic "empathy" for the hypothetical mother whom he felt needed protection from decisions she might regret, despite the lack of evidence to support that notion.

Likewise, Justice Alito, as a judge on the 3rd Circuit of the United States Court of Appeals, was the lone dissenter in the 1991 case Planned Parenthood v. Casey. He argued for upholding a law that would compel wives to inform their husbands if they were going to have an abortion. The original law was intended to protect women who might be subject to violence or abuse from their spouses. Alito cited previous rulings, including a 1976 dissenting opinion from Justice Byron White, ("A father's interest in having a child -- perhaps his only child -- may be unmatched by any other interest in his life") in order to make the case that a father had a "legitimate interest" in the life of his child that stopped short of a husband being able to forcibly prevent his wife from having an abortion but gave him a right to be notified in advance. Of course, forcing women to notify their husbands might lead to that exact outcome. Alito and his pro-life predecessor were empathizing with the potential father, and that empathy informed their opinions.

Justice Scalia's dissenting opinion in the 2003 Lawrence v. Texas case that struck down anti-sodomy laws laments the plight of those "protected" by laws criminalizing homosexuality. "Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home," Scalia wrote. "They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive."

On issues of race, both Justice Thomas and Justice Roberts have shown a degree of empathy, but for different reasons. In a 2002 case involving school vouchers, Thomas didn't merely argue that the voucher law in question was constitutional; he likened black pursuit of education to the struggle for emancipation, quoting Frederick Douglass at the beginning of his opinion. "Today many of our inner-city public schools deny emancipation to urban minority students," he wrote. This is not a dispassionate reading of the law. In general, Thomas' rulings on race-related issues are deeply influenced by his belief that affirmative measures taken to address racial discrimination hurt blacks rather than help them. In his writing, Thomas empathizes deeply with other black folks -- he just disagrees with them on a significant number of issues, such as affirmative action, which most black folks support.

Roberts is probably the most reserved of the justices when it comes to letting his feelings creep into his legal reasoning. But as Jeffrey Toobin noted in The New Yorker last week, on issues of race, Roberts has let the mask slip most recently in oral arguments involving the Voting Rights Act and the Frank Ricci affirmative action case. While Thomas asserts that laws addressing discrimination harm blacks rather than help them, Roberts' view appears to be that such laws discriminate against white people.

During the arguments over Ricci, Roberts pestered the lawyer defending the city's affirmative action program, saying, "You maybe don't care whether it's Jones or Smith who is not getting the promotion," he said. "All you care about is who is getting the promotion. All you care about is his race." During oral arguments over the constitutionality of Section 5 of the Voting Rights Act, Roberts demanded of the NAACP Legal Defense Fund's Debo Adegbile, "Is it your position that today Southerners are more likely to discriminate than Northerners?" Discrimination against minority voters prevented by Section 5 was, to Roberts, less important than the "discrimination" against jurisdictions with a history of voter suppression against minorities.

As for Sonia Sotomayor, Obama's nominee to replace David Souter, it's clear that despite attacks from the right, she's no racial ideologue. (Over at National Review, Peter Kirsanow described Sotomayor as representing an "unabashedly racialist interpretive doctrine.") In at least two racial discrimination cases, Williams v. R.H. Donnelly Co. and Norville v. Staten Island University Hospital, Sotomayor ruled against the plaintiff alleging racial discrimination. In Pappas v. Giuliani, she dissented from the majority in a case that upheld the NYPD's decision to fire an employee after it was discovered he had sent a number of racist mailings, because he sent the material anonymously on his own time. Whatever her experiences as a Puerto Rican woman in society, understanding of empathy is markedly different from simply favoring minority plaintiffs, or those plaintiffs who might share or represent her personal political views.

Yesterday, when her nomination was announced, Sotomayor said that her "wealth of experiences, personal and professional, have helped me appreciate the variety of perspectives that present themselves in every case that I hear," adding, "It has helped me to understand, respect and respond to the concerns and arguments of all litigants who appear before me, as well as to the views of my colleagues on the bench."

The fact that conservative jurists engage in empathy, often to garnish a legal conclusion appealing to other conservatives seems to suggest, in fact, that conservatives are right about the subtext of the "empathy standard." It may indeed be code for a liberal jurist who will rule like a liberal; just as "strict constructionist" is code for a conservative ideologue. It's not clear why conservatives find this so appalling -- movement conservatives vetoed at least two of George W. Bush's court picks: Alberto Gonzales before he was nominated, and Harriet Miers after, simply because they didn't have a paper trail that established them as sufficiently conservative. Nor am I suggesting that conservative jurists rule with no regard for precedent (although the Roberts court has been activist in a conservative sense, overturning one established precedent after another) merely that their personal views and experiences very clearly color their vision of the law.

Judicial impartiality is something like journalistic objectivity, a standard that is worth aspiring to but can't possibly be attained. Sotomayor's statements about empathy suggest she will pursue that standard, but the truth is that neither conservatives nor liberals like judges with that kind of distance, and it's not clear that the law or the country would be well served by it in any case. For example, conservative language used to attack liberal judicial nominees harkens back to opposition to civil-rights laws that helped realize the promise of equal protection under the law for women and minorities -- this has been mostly forgotten, but if these justices were ruling partially on the basis of "empathy," we're a better country for it.

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