Empathetic Judges

In the argument over who should be the next Supreme Court Justice, liberals in general and Barack Obama in particular have taken no small amount of crap for their desire to have justices who are empathetic. Conservatives have screeched about the need to focus on the impartiality of law, etc. As I noted both in this post and in
the comments
which followed it, the notion that a judge can be anything approaching objective is a myth, a fallacy. It's very similar to the notion that our media can be objective--it's not in human nature.

Dahlia Lithwick and Doug Kendall make that argument very well in Slate this morning by pointing out that conservative judges play the empathy card all the time, as do the conservative activists who bring lawsuits. (They also give a really lucid breakdown of the Ricci case.)

Pity poor Frank Ricci. You probably already do. Ricci is a white firefighter from New Haven, Conn., who is the plaintiff in an important civil rights case before the Supreme Court this term. Ricci suffers from dyslexia, which made passing a written exam established by New Haven for promotion to lieutenant especially challenging for him. He studied hard and got the sixth-highest score on the exam—qualifying him for one of the eight open spots. But despite all that, Ricci still hasn't received his promotion, which is the basis of his lawsuit.

What does Ricci's dyslexia have to do with the law? Very little, actually. The city of New Haven threw out the results of the test he took because it feared that the examination was discriminatory. That's because none of the African-American candidates, and only two of the 50 minority candidates, who took the test would have been eligible for promotion based on the results. Regardless of how you and I may feel about Frank Ricci or how much he deserved to be promoted, discriminatory results like that can run afoul of Title VII of the Civil Rights Act of 1964. And in this case the results of the test far exceeded the statistical cutoff that suggests a constitutional violation has occurred.

When the case was argued before the Supreme Court last month, all of the justices seemed to agree that New Haven had to comply with valid federal statutes. Mr. Ricci did not challenge the constitutionality of Title VII. So the only real question before the court was whether New Haven had reason to believe that if the city used the test results it would be sued under Title VII. Mr. Ricci's specific circumstances—his race, his dyslexia, and his professional aggravation—have no bearing on that legal question at all.

So why did every report on the case begin and end with Ricci's compelling employment story? Might it have something to do with the fact that the conservative organizations supporting Ricci used his sympathetic tale as the centerpiece of a successful media blitz leading up to oral argument before the court? Could it be that they wanted to make sure the justices understood just how Title VII could impact the lives of ordinary Americans like Frank Ricci? Could they—oh the horror!—have wanted the justices to empathize with Ricci's plight?
Of course they did, and as Lithwick and Kendall explain, Ricci's lawyers would be poor lawyers indeed if they didn't try to exploit Ricci's story for every bit of sympathy it could engender.
Every time Justice Antonin Scalia writes a habeas opinion that begins with the depiction of a gruesome murder, he is evincing empathy toward the victim. When Chief Justice John Roberts battled for the rights of white schoolchildren facing arduous bus trips and educational hardship due to school integration programs in Seattle and Kentucky, he was evincing empathy for the white "victims" of affirmative action. It's a patent falsehood that liberal judges weep and bleed for their plaintiffs while conservative jurists treat plaintiffs with stony indifference. And smart advocates on either side, knowing that, seek out "sympathetic plaintiffs" for litigation precisely because they are attempting to appeal to some part of the court's lizard brain; the part that does more than mechanically apply the law to the case.
Exactly. What Lithwick and Kendall are describing here, I think, is an extension of the phenomenon we've seen play out in the media between liberals and conservatives over at least the last forty years. It's what's gotten us the ridiculous argument that Republicans are the daddy party, all discipline and strictness, while Democrats are the mommy party, all softness and love. The reality is that there is no dichotomy here--there's only a difference in who gets empathized with, and even that varies depending on the particular circumstances. Well, and the intellectual honesty one brings to the table, i.e., whether one is willing to admit to being empathetic or pretends to be otherwise.

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