Doug Kmiec has a rather bizarre article up at America entitled The Case For Empathy: Why a Much-Maligned Value Is a Crucial Qualification for the Supreme Court. If the article is any indication, I suppose we should be thankful Obama didn’t make any off-hand remarks suggesting ‘creativity’ or ‘imagination’ were traits he would look for in a potential Supreme Court justice, if only because it might have lead to more essays like this one. After some preliminary gushing about, you guessed it, empathy, Kmiec explains what an empathetic justice would accomplish:
To do this, it is possible that [Obama] will mine for legal talent in unusual places, but it is more likely he will attempt to find a nominee with appellate court experience whose skill set also shows the capability of challenging methods of interpretation that otherwise wouldn’t give empathy the time of day. If Obama succeeds even with this more limited challenge,he will have exploded the notion that swapping out a Souter for a new, most likely younger and intellectually energetic, justice is without effect.
Frankly, I’m not sure what this talk of exploding notions is all about. The most significant impact of Supreme Court justices comes from their votes and majority opinions. Unless Kmiec is suggesting an ‘empathetic’ justice pursuing ‘challenging methods of interpretation’ will either 1) vote with the conservatives more, or 2) single-handedly persuade four other justices to pursue novel interpretations by the sheer force of ‘empathy,’ it’s hard to envision much change in the Court after this appointment (other than the longer-term effect of having a younger liberal rather than an older liberal on the Court, which is hardly explosive). Moreover, Kmiec’s examples of empathy in action are somewhat lacking. First, he makes a bizarre claim about Souter’s jurisprudence.
In important ways, the Souter legacy has been an important brake on entrenchment of either liberal or conservative ideology.
This is complete nonsense, as Souter was one of the most reliably liberal votes on the Court. In the most recent Supreme Court term, Justice Souter and Justice Ginsberg (nobody’s idea of a conservative) voted together on 88% of the cases decided, a higher rate of agreement than any other two justices on the Court. If that’s a “brake” on liberal ideology, I’m not sure what a gas pedal would look like. By this logic, Scalia is a brake on the conservative ideology of Thomas (hey, they agree less often than Souter/Ginsberg).
Kmiec then provides an example of ‘empathy’ in a recent employment discrimination case (in which, by the way, Souter did not even contribute an opinion):
Souter’s non-ideological empathy was also in dissent in the Lilly Ledbetter case. Here, the Court resolved a statutory ambiguity against giving remedy to a woman whose pay was shorted wrongly because of her gender, but who didn’t sue in a timely way because she was initially unaware of the discrimination. The case was a tossup in terms of precedent and statutory language, but empathy would have given Mrs. Ledbetter the benefit of the doubt. She wasn’t, and it took President Obama and a few statutory adjustments to clarify that Congress did not want others facing similarly hidden discrimination to be without remedy. However, Congress cannot be expected to be on guard for every judicial decision that offers a less than robust defense of civil liberty, so empathy has its place.
This is an interesting summary. What happened here was that Congress wrote a law. The law had a provision that disadvantaged Ms. Ledbetter (notice Kmiec doesn’t contest the legal merits of the majority opinion). And, then, horror of horrors, Congress had to go back and fix the “hidden discrimination” in the law Congress originally wrote. It was a 5-4 decision, and I suppose ignoring the text of the statute may have been more empathetic. Results-oriented judicial activism is a popular and prevalent method of interpretation, and it is shared by nearly all liberal justices (and not a few conservative ones, depending on the case). It’s certainly expedient, and that expedience can be put in the service of empathy, but it hardly ‘explodes’ the expectations of those expecting Souter’s replacement to vote like a liberal. And so Kmiec provides us with another example of the value of empathy:
Where else might empathy surface? Consider last year’s Heller decision. In Heller the Court found the Constitution to guarantee not just an individual right to own guns as part of a militia, but also a personal right to tote a weapon far more widely. A highly controverted limit on the right of the people to address gun violence, the Heller decision at least only curtailed the authority of the District of Columbia. It would be far more dubious to accept this ruling, which effectively erased the first 13 words of the Second Amendment, as also constraining all 50 States. It’s hardly empathetic to ignore unprecedented numbers of homicides and this issue will soon return to the Supremes.
Let’s set aside the legal merits for a moment (Kmiec’s embarrassing misrepresentation of the relevant legal issues would take too long to explain here), and the fact that Kmiec joined an amicus brief urging the Court to rule the way it did (his empathy appears to be quite recent), and ask again: How does this show that empathy, as opposed to being a liberal, is “crucial” for a Supreme Court Justice. Would a judicial opinion that said, as Kmiec basically does above, that 1) Guns are bad because they are linked to homicides; 2) Therefore cities should be able to ban them, really explode any notion about the effects of replacing Souter with a similarly-voting liberal? I’m doubtful.
Moreover, Kmiec’s treatment of Heller illustrates the hollowness of empathy as a concept (at least as presented by Kmiec). In an adversarial system, empathy towards one party or the other can be used to justify either result. For example, one could argue in Heller that individual citizens should be entitled to self-protection in one of the most dangerous cities in the U.S. Kmiec, however, ignores the concerns of law-abiding citizens and instead extends empathy to the D.C. government (a far less-sympathetic group, one might add), which suggests that some other underlying principle is doing the real work.
Finally, we come to Kmiec’s third example of empathy, gay marriage:
There is also same-sex marriage. While to date these jurisprudential nuptial knots have been tied (or not) in the State courts, the subject is inevitably destined to stand before federal altar. If the California Supreme Court, for example, chooses to uphold Proposition 8 in a way that validates the selective oppression of one class of citizens, the empathy animating federal equal protection will be put to the test.
Here, I guess, Kmiec takes the legally mainstream, but not terribly Catholic, position that empathy requires overturning state laws and state constitutions limiting marriage to one man and one woman. Setting aside the legal merits of the Equal Protection claim (antecedent moral/ethical/theological positions on whether two men or two women are similarly situated to one man and one woman determines whether the Equal Protection claim succeeds here), it seems likely that most liberal justices will approve of same-sex marriage. As this will be true of almost any Obama appointee, Kmiec’s example once again fails to show the importance of ‘empathy,’ as opposed to being a liberal justice.
Perhaps Kmiec’s position is that being empathetic is synonymous with being a liberal, but if so, his suggestion that the appointment of someone empathetic would be noteworthy (much less explosive) is nonsensical: any Obama nominee will presumably be a liberal. And empathy can usually be used to justify either result. The reader is left to wonder: what does Kmiec mean by empathy, how is it different (if at all) from being a liberal, and why is it a “crucial” characteristic for Supreme Court justices?
Unfortunately, I have even more to say about this article (hint: Kmiec discusses abortion further on), but this will have to do for now.
Update: Stuart Buck has put together an interesting post comparing this article to Doug Kmiec’s pre-2008 statements on judicial philosophy.