The Empathy War: The Battle Over the Next Supreme Court Justice

by Pejman Yousefzadeh on May 20, 2009

Supreme Court nominations seem to create something of a madhouse atmosphere in journalistic circles. The coverage of political battles is incomplete and replete with error. The coverage of judicial personalities is tinged with a general inability to grapple with the jurisprudence of the personalities in question. It’s not easy to go through a Supreme Court nomination process with anything approaching public dignity and decorum; the degree to which journalists fall down on the job in covering the nomination process makes achieving dignity and decorum that much harder.

Aaron Wiener’s piece caught my eye as being representative of the media’s general inability to grapple successfully with the nomination process. His discussion merits further analysis.

Wiener tells us that conservatives are defining the language of the nomination battle, with liberals being forced to play defense in the war of words; per Wiener’s telling, it would seem that we on the center-right have learned to play the Lakoffian framing game. Much of the war of words centers around the battlefield of “empathy,” which President Obama identified as one of the key traits he is looking for in the next Supreme Court Justice:

We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.

Wiener seems to object to the fact that conservatives have focused on the “empathy” label, and that “empathy” is drawing a lot of rhetorical fire. One possible response to Wiener’s apparent unhappiness with the conservative response is to point out that no one is in charge of Barack Obama’s statements on the traits possessed by the ideal Supreme Court nominee save the President himself, and that if “empathy” has become a fighting word in the debate, it is only because the President put it forth as a key trait he wants his eventual nominee to possess. What were conservatives supposed to do in response? Ignore the President and his comments? The contrary was done; the center-right took the President at his word concerning the qualities he wants his eventual nominee to demonstrate, and is responding to the President’s own characterization of what an ideal Supreme Court nominee should be. If Wiener doesn’t like this, if liberals are discomfited, if the President is made unhappy by this turn of events, then the complainers in question have only Barack Obama to blame.

Mostly, Wiener seems to be upset that liberals don’t know how to deal with the conservative critique on this issue. Consider the following:

Goodwin Liu, a Berkeley law professor and the chairman of the board of directors of the American Constitution Society, a liberal legal organization, expressed surprise at the controversy that “empathy,” a positive term, has engendered. “I’m a little baffled by that,” he said. “If it’s a code word, I don’t know what it’s a code word for.”

Both Wiener and Professor Liu might consider that the objection to “empathy” may center around the contention that while empathy is laudable in and of itself, and while it is certainly desirable in a policymaker, perhaps empathy should not trump “adherence to law” when it comes to examining the qualities of judicial candidates. As I wrote previously on the subject of the impending Supreme Court nomination:

Heart and empathy are lovely things. I endorse their existence and proliferation in the world. But understanding and applying the law to a certain set of facts is a demanding intellectual exercise, first and last. One could have the most empathetic Justice in the world, but if that Justice botches the reading and application of the law at issue, all of the heart and empathy in the world will not save society from the deleterious consequences that would arise from adjudicatory errors.

To further specify, there may be ample room for empathy when it comes to policymaking on the Congressional level, or when it comes to having the Executive designing and implementing policy and regulations. But the judge is not appointed to be either empathetic or unfeeling. The judge is appointed to interpret and apply the law. Empathy may lead to the creation of new, different, and potentially, better policies, but if a judge takes on the role of policymaker, he/she supplants Congress and the Executive Branch, a violation of the separation of powers.

Not content with this explanation, and wanting to take the verbal momentum away from conservatives, liberals–while denouncing conservative “code words”–are more than happy to play the code word game, as Wiener himself notes:

On another conservative line of attack — judicial activism — liberal experts countered that this label was itself a code.

Bill Yeomans, the legal director of the progressive advocacy group Alliance for Justice, said that the term judicial activism “is sort of thrown out unthinkingly” by conservatives who use it as a proxy for a number of different lines of attack. “It’s a code word,” he said. In its own right, it “doesn’t really mean anything.”
Liu concurred. “Judicial activism is a result that someone doesn’t like,” he said. “That’s it.”

Yeomans and Liu both argued that if activism is measured by a departure from precedent, the conservatives on the bench have been more activist than their liberal counterparts. “By any definition of judicial activism, I think it’s fair to say that the conservatives have been the activists over the past ten years or so,” said Liu.

Note that by this telling, it is wrong for conservatives to engage in “code words,” but it is perfectly all right for liberals to do so. While I wait for the irony to sink in, let it be noted that Mr. Yeomans is content to inform us that the term “judicial activism” is misused in this debate because it “doesn’t really mean anything.” Professor Liu “concur[s]” with the belief that the term “doesn’t really mean anything,” but then, he goes on to suggest that it does mean something; namely, that it is “a result that someone doesn’t like.” Then, we find out that “judicial activism,” only recently considered devoid of meaning, is given a second meaning a few sentences later, with Messrs. Yeomans and Liu informing us that “judicial activism” means “departure from precedent” and that this makes the conservatives the judicial activists.

One is struck by the possibility that the reason liberals are having so much trouble organizing their message and countering the conservative message, is that the liberals are too busy undercutting their own claims with every new sentence. But putting that aside, it simply does not do to define “judicial activism” as a mere departure from precedent. To be sure, stare decisis represents a potent influence on judicial decisions, but stare decisis is not an absolute bind on a jurist and precedent can be overturned. Using “departure from precedent” as the definition for “judicial activism” and calling conservatives “judicial activists” on a willy-nilly basis ignores the fact that there are serious differences amongst judicial conservatives concerning how precedent is to be treated; Justice Scalia, for example, is far more willing than Justice Thomas to let stand a decision based on stare decisis, even if Justice Scalia believes the decision was wrongly determined in the first place. The critique offered by Messrs Yeomans and Liu ignores this fact, and overly simplifies the beliefs of judicial conservatives.

“Judicial activism” has less to do with respect for precedent and more to do with the belief on the part of some jurists that they can claim for themselves the power to create and implement policy, a power assigned to the Legislative and Executive Branches of government under our Constitution. In the jurisprudence of the judicial activist, the courts are not merely vehicles for interpreting and applying the laws–they are also vehicles for societal change, think tanks that can back up with the force of law the implementation of the policies judicial activists seek to put forth in anti-democratic fashion. Judicial activism is a trait that is part and parcel of liberal jurisprudence. The liberal legal community may dislike the use of the term, but perhaps the term stings them because it is so aptly applied.

Not deterred by its rhetorical fumblings, the liberal legal community digs the hole deeper for itself, as Wiener writes:

While the liberal experts took issue with the key terms used by conservatives — or at least their usage of those terms — they shied away from putting forward new catchwords. “I guess I’d want to get away from the concept of code words,” said Yeomans. He wants to see the confirmation hearings focus on intelligence, knowledge of the law, an open mind and a willingness to follow the facts — a reframing that would take the game off of the Republicans’ court.

Why possessing “intelligence, knowledge of the law, an open mind and a willingness to follow the facts” would “take the game off of the Republicans’ court” is anyone’s guess; presumably, recent Republican Supreme Court nominees John Roberts and Samuel Alito wouldn’t qualify as being smart or knowledgeable enough to keep up with the liberal “reframing,” a silly proposition in the mind of anyone who is familiar with the Chief Justice, Justice Alito, and the splendid qualifications they possess. Wiener informs us that conservatives want to use “catch phrases” in dealing with the next Supreme Court nominee, but anyone who thinks that liberals wouldn’t use “catch phrases” as well–if they ever are able to decide on the phrases to use and stick to their resolutions–is living in a fantasy land. Political debates and arguments are positively replete with “catch phrases” on each side. “Catch phrases” are used by both conservatives and liberals to advance their arguments–a proposition so obvious that one would think it axiomatic. The liberal attempt to portray itself as being holier-than-thou with its supposed determination to forswear “catch phrases” is more than a little laughable.

Indeed, when one considers matters, Wiener’s entire complaint is chuckle-inducing. I don’t mean to be rude to him, but he seems to forget that Barack Obama is in the White House, and Democrats will have a filibuster-proof majority in the Senate once Al Franken gets in–as he is expected to. With such overwhelming political might behind them in the coming Supreme Court fight, one wonders why it is that liberals appear to be so afraid that conservatives–out of power and politically down on our luck–are supposedly determining the terms of the current debate. At the end of his piece, Wiener tells us that “the game is likely to change considerably when Obama announces his nominee,” and approvingly cites Brian Darling of the Heritage Foundation, who states that the current rhetorical campaign “is all noise,” and that it “will become completely irrelevant when the nominee is put forth.”

Which leads one to wonder why Wiener wasted his time complaining about conservative rhetorical successes in the campaign over the next Supreme Court nominee, if he believes that ultimately, the rhetorical fight won’t matter.

Read more and comment at Pejman Yousefzadeh’s blog.

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