Crimes of Compassion

Check out this morning’s article in Slate Magazine, co-authored by CAC President Doug Kendall and Slate Senior Editor Dahlia Lithwick. Here’s a preview:
Isn’t it time for conservatives to turn off the phony outrage over judicial empathy, given the ways they’ve been successfully playing to it and capitalizing on it in recent years?

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 school children 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.

We all should want judges to be empathetic to the litigants before them—be they Frank Ricci, the city of New Haven, Susette Kelo, or Lilly Ledbetter. And the fact is that we all should also want judges to follow the text of the Constitution and the law, even while the realities and hardships of these real-world litigants play out in the background of the case. The notion that conservative jurists follow the law while liberal jurists emote wildly from the bench is just another political story. And repetition doesn’t make it any truer. The best judges combine empathy with adherence to the rule of law. Given that both liberals and conservatives have long sought to benefit from that fact, isn’t it high time we were all honest enough to admit it?