Conservative Judicial Empathy? You Betcha!

Obama's statement that he would like a Supreme Court justice who is both intelligent and who shows "empathy" has created quite a swirl of activity. If I were president, I am fairly certain I would not have used the word "empathy" to describe a trait of potential nominees because it is both amorphous and subject to great political distortion and abuse. Nevertheless, for reasons that will soon become apparent, much of the conservative melodrama over the term demonstrates a tremendous measure of ignorance regarding the details of Supreme Court rulings or simple hypocrisy.

Conservative Judicial Empathy
Obama has elaborated the idea of empathy, stating that he believes a Supreme Court justice should understand "how our laws affect the daily realities of people's lives" and should identify "with people's hopes and struggles."

Using Obama's own words, I have compiled a listing of examples where Justices Scalia and Kennedy have expressed empathy in their judicial opinions. If conservatives believe that empathy is a bankrupt concept, then they should reject its use by rightwing and right-leaning justices.

Justice Scalia
In Johnson v. Transportation Agency of Santa Clara County, the Supreme Court rejected the claim of Paul Johnson, a white male employee who alleged that his employer unlawfully promoted a woman over him by taking sex into account pursuant to an affirmative action plan. Scalia's vigorous dissent argues that advocates of race and gender equality are politically powerful and that the Court's ruling would encourage employers to hire "unqualified" women and persons of color in order to avoid costly litigation.

Exhibiting a great deal of empathy, Scalia concludes that poor white males are the true victims of discrimination and in need of judicial protection:

[T]he only losers in the process are the Johnsons of the country, for whom [the antidiscrimination statute] has been not merely repealed but actually inverted. The irony is that these individuals -- predominantly unknown, unaffluent, unorganized -- suffer this injustice at the hands of a Court fond of thinking itself the champion of the politically impotent.

Scalia satisfies Obama's empathy standard because he uses Johnson's experience to discuss "how our laws affect the daily realities of people's lives" and to "identify with people's hopes and struggles."

In United States v. Virginia, the Supreme Court invalidated the Virginia Military Institute's policy of excluding women. Scalia's lone dissent expresses empathy with citizens of the state and with male students:

Today the Court shuts down an institution that has served the people of the Commonwealth of Virginia with pride and distinction for over a century and a half.

Scalia portrays VMI as the victim of modern social movements that seek to dismantle traditional notions of gender. For example, he quotes at length from a book entitled "The Code of a Gentleman" that VMI required all first-year cadets to possess. The book lists traditional concepts of manhood, which Scalia believes, regrettably, that the Court's ruling will destroy:

A gentleman . . . [d]oes not speak more than casually about his girl friend. Does not go to a lady's house if he is affected by alcohol. . . Does not hail a lady from a club window. . . [N]ever discusses the merits or demerits of a lady. . . Does not slap strangers on the back nor so much as lay a finger on a lady. . . .

I do not know whether the men of VMI lived by this code . . . But it is powerfully impressive that a public institution of higher education still in existence sought to have them do so. I do not think any of us, women included, will be better off for its destruction.

If Obama's search for empathetic justices appalls conservatives, then Scalia's emotional discussion of male valor should anger them as well.

Justice Kennedy
Justice Kennedy is a right-leaning moderate. In 2007 he authored the Court's ruling in Gonzales v. Carhart which upheld the federal prohibition of "partial-birth abortion." A particular passage of Kennedy's ruling empathizes with women whom Kennedy believes would later regret having the procedure:

Respect for human life finds an ultimate expression in the bond of love the mother has for her child. . . .Whether to have an abortion requires a difficult and painful moral decision. . . .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. . .Severe depression and loss of esteem can follow. . . .

It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.

As a male, Kennedy cannot draw upon any personal experience as a person who has terminated a pregnancy. Accordingly, he can only empathize with women's feelings as stated in Court submissions, although he concedes the absence of "reliable data" on this issue. Based on his empathy and concern for this particular class of women, notwithstanding the lack of clear evidence, Kennedy argues that Congress can ban the procedure for all women -- even though the Court had invalidated a similar state law in 2000.

Finally, in Parents Involved in Community Schools v. Seattle School District No. 1, the Court invalidated policies designed to maintain racial integration public schools. Although Kennedy joined the four conservatives to create a majority ruling invalidating the policies, he wrote separately to disagree with the conservatives' assertion that states did not have a "compelling interest" in preventing racial segregation in schools. Kennedy, however, prefers more subtle policies to achieve this goal. Kennedy explains that explicit, rather than covert, race policies harm individual "dignity":

To be forced to live under a state-mandated racial label is inconsistent with the dignity of individuals in our society. And it is a label that an individual is powerless to change. Governmental classifications that command people to march in different directions based on racial typologies can cause a new divisiveness. The practice can lead to corrosive discourse, where race serves not as an element of our diverse heritage but instead as a bargaining chip in the political process. On the other hand race-conscious measures that do not rely on differential treatment based on individual classifications present these problems to a lesser degree.

Like Scalia, Kennedy fulfills Obama's "empathy" test because he expresses his own understanding of how race-based legislation "affects the daily realities of people's lives." If conservatives believe that Obama's empathy standard is illegitimate, then they should condemn Kennedy for modeling it in his opinions.

Conclusion
The preceding analysis discusses just a few of the many instances of conservative judicial empathy. Conservatives judges have "empathized" with white male discrimination plaintiffs whom they view as victims of feminism and civil rights. They have empathized with hypothetical women whom they feel are so distraught over their choice to have partial-birth abortions that their anxiety justifies a complete ban of the procedure. They have also empathized with whites subject to diversity and integration policies in the educational setting on the grounds that the conscious use of race offends their dignity. If conservatives truly believe that empathy has no role in judging, then they should reject displays of empathy among conservative justices. Do not hold your breath.

Update: More on Conservative "Empathy"
Talking Points Memo via Media Matters has a great report on President Bush and empathy. Apparently, when he introduced nominee Clarence Thomas, he marketed him as a "man of great empathy."