Some Words About "Empathy"

(And I also posted here - a lot to catch up on.)

After reading this post by Adam B at The Daily Kos on the matter of judicial “empathy,” I thought I should add a bit to it (and of course, the right wing is currently trying to turn “empathy” into code language; re., Obama Supreme Court nominee Sonia Sotomayor will not employ her formidable intellect and knowledge of the law in her decisions but instead try to achieve some legal means to “create law from the bench” as an “activist judge” because she’s a woman/Latino/Democrat/liberal/progressive/all of the above).

All of which is utter garbage, of course.

Adam B. notes the role of “empathy” in the nomination of Clarence Thomas to the High Court, but this notes the following from 2005 about the nomination of “Strip Search Sammy” Alito…

Sens. John Cornyn (R-Texas) and Robert Byrd (D-W.Va.), told The New York Times they were pleased that Alito expressed empathy for the Religious Right belief that Supreme Court rulings maintaining church-state separation have removed God from the public square.

There are times when I know I should cut Byrd some slack, but concerning this matter, I don’t feel like it; if Byrd couldn’t see the danger Alito posed prior to his confirmation, then maybe it’s time for him to take his fiddle and resign.

And this tells us the following…

The truth is that conservative organizations have been beating the hell out of their liberal counterparts in the empathy game for some time now. More Americans can probably identify Susette Kelo and Wilhelmina Dery as the plaintiffs who had their homes snatched by the government in an eminent domain case in 2005 than can name any Supreme Court justice. That case, Kelo v. New London, had absolutely nothing to do with the adorableness of Kelo's Victorian house and the tenacity with which she fought to keep it. But to read about it in the press, you'd think Justice David Souter himself showed up on Kelo's doorstep, punched her in the mouth, then moved into her home and ate off her good china.

And who can forget Dick Heller, the sympathetic Washington, D.C., security guard who won the Second Amendment right to keep a handgun in his Capitol Hill home in last year's blockbuster gun case? If you think the conservative advocacy groups didn't look long and hard for a plaintiff who was a lawful gun owner in a crime-riddled neighborhood who simply wanted to protect what was his, you don't know the Heller case. His life story had no bearing whatsoever on the constitutional dispute before the court. But if the lead plaintiff in Heller had been a crack dealer who'd shot a pregnant woman while robbing a liquor store, those constitutional issues might have looked a lot murkier to the court that ultimately ruled in his favor.

Borrowing from the litigation strategy employed by the NAACP in Brown v. Board of Education, conservatives have tracked down and capitalized on sympathetic plaintiffs to win cases and move the law in their favored direction. Commentator Pat Buchanan has gone so far as to suggest that as part of their rebranding effort, the Republican Party should consider becoming "the Party of Frank Ricci."

And in case you’re wondering who Frank Ricci is, the link to a Pat Buchanan (ugh) column from Slate (in addition to the Slate column itself) tells us that…

He is a fireman in New Haven, Conn., with 11 years in the department, who suffers from dyslexia, but nonetheless has pursued his dream of becoming a lieutenant and a captain.

Six months before the promotion test, Ricci quit his second job. He bought $1,000 worth of the textbooks he was told to study, had a friend read them onto tapes to compensate for his dyslexia, studied every spare hour he got, and sat for the test, to compete for one of eight lieutenant slots open.

Frank made it. Frank Ricci came in sixth.

And Ricci, according to Buchanan, was denied a promotion by “the liberal bigots who run New Haven (CT).”

Yeah, that “playing the white rage” card has worked so beautifully for Repugs in the last two elections, hasn’t it, Pat?

And here’s another quote about empathy from a former Supreme Court nominee…

"I regard law as a discipline in which you have to have empathy for people you are trying to understand."

Anyone care to guess the “liberal” who uttered those words? Why, it was none other that Robert Bork, ladies and gentlemen.

I would ask that you keep all of this in mind while “the usual suspects” try to gum up the Sotomayor confirmation hearings, with Jeffrey Rosen leading the charge here in an attack featuring a misinterpretation of a footnote “in a way that (supposedly) mislead litigants,” when in fact it did no such thing; it’s actually laughable for Rosen to say anything about Sotomayor at all given that he “(hasn’t) read enough of Sotomayor's opinions to have a confident sense of them, nor have I talked to enough of Sotomayor's detractors and supporters, to get a fully balanced picture of her strengths,” as noted here.

Let the games being (sigh) – and lest anyone contemplate the “F” word, as it were, consider this.

Update 1: Oh, and while the wingnuts lose what’s left of their minds over Sotomayor, I think we should recall this.

Update 2: Ha ha ha...