Tuesday, May 26, 2009


The latest conservative buzz word is empathy. In particular the horror they feel at the prospect that a federal Judge might have the quality of empathy. The reason, according to such conservative leaders as Orrin Hatch, is

...the likelihood of a partisan debate over the president's first nominee for the high court already is clear, with a leading Senate Republican warning that Obama has spoken of finding a nominee with "empathy.''

"Usually those are code words for an activist judge... who is going to be partisan on the bench,'' said Sen. Orrin Hatch (R-Utah), on This Week. "We all know he's going to pick a more liberal justice.... A pro-abortion justice - I don't think anybody has any illusions about that.''

The implication here is that, to a conservative, and empathetic judge is going to be one sided in favor of liberal causes. Other conservative commentators have taken an even dimmer view of empathy in a judge. See, for example, this article from CAP. It would seem that to conservatives an empathetic judge must be completely unfair.

At first thought, however, this should seem like a pretty odd attitude towards empathy in a judge. The meaning of the word empathy would hardly support this conservative belief. Take, for example, this definition from dictionary.com. Empathy is "the intellectual identification with or vicarious experiencing of the feelings, thoughts, or attitudes of another." So, in conservative world, if a judge is able to identify with the attitudes of others in general, he or she will be able to understand the position of both litigants then she is unfairly biased, but if she can only appreciate the attitudes of a litigant like herself she will be fair. That doesn't make sense. In the real world things work the other way around.

I do not believe, however, that this is a dishonest put on by conservatives. This is really the conservative view of things. To a conservative the proper way to organize society is around privilege (see here and here). A judge ought to be favorably disposed toward the conservative and biased against the opponent of any conservative. To have judges that will consider the conservative's position on par with his opponent is indeed, to a conservative, unfair.

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