Empathy can cut both ways

EMPATHY CAN CUT BOTH WAYS…. It’s tempting to point to every conservative who’s complained of late about President Obama, the Supreme Court, and “empathy,” but it would take too long. Like a child overly attached to a blanket, this has become the talking point the right simply can’t live without. (Michael Steele’s “I’ll give you empathy; empathize right on your behind” remains a personal favorite.)

At first blush, this seems like a political loser. Republicans seem to expect Americans to recoil at the idea of an “empathetic” judge, but the typical person, I suspect, will not see this as some kind of dreaded “code” word.

But there are two arguably more important angles to this. The first is that the right, a little too anxious to wage a “war on empathy,” seems to have lost sight of what the word means. As Dahlia Lithwick recently explained, “Empathy in a judge does not mean stopping midtrial to tenderly clutch the defendant to your heart and weep. It doesn’t mean reflexively giving one class of people an advantage over another because their lives are sad or difficult. When the president talks about empathy, he talks not of legal outcomes but of an intellectual and ethical process: the ability to think about the law from more than one perspective.”

The second is a point Adam Serwer makes very effectively today. Conservative jurists consider empathy in application of the law all the time — they simply feel empathetic towards a different group of people.

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 towards 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 her 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.

Excellent point. In abortion rights cases, conservative justices have expressed empathy for fetuses, hypothetical mothers, and would-be fathers. In gay rights cases, conservative justices have expressed empathy for conservative families. In cases involving public funding of private religious schools, conservative justices have expressed empathy for parents in underperforming public school districts.

In each case, the larger conservative movement didn’t express outrage at the judges’ willingness to break with the mechanical application of the law; they were thrilled. Empathy matters to the right, just so long as the “proper” person or group is the beneficiary.

Indeed, this comes up even in the midst of the complaints about empathy. We’ve heard quite a bit over the last two days about Connecticut firefighter Frank Ricci, who, despite dyslexia, worked hard to do well on a written exam established by the local fire department for a promotion. He was passed over, however, because the test results were thrown out, when officials feared the exam was discriminatory against African Americans.

The legal question was a narrow one: “[T]he 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 are conservatives so quick to point to these details? Because they want the courts and the public to feel empathy for Ricci, appreciating the details that make him feel aggrieved.

The right may not like it, but empathy cuts both ways.