It's not just liberals who play the empathy card.

The law, lawyers, and the court.
May 15 2009 3:56 PM

Crimes of Compassion

It's not just liberals who play the empathy card.

Pity poor Frank Ricci. You probably already do. Ricci is a white firefighter from New Haven, Conn., who is the plaintiff in an important civil rights case before the Supreme Court this term. Ricci suffers from dyslexia, which made passing a written exam established by New Haven for promotion to lieutenant especially challenging for him. He studied hard and got the sixth-highest score on the exam—qualifying him for one of the eight open spots. But despite all that, Ricci still hasn't received his promotion, which is the basis of his lawsuit.

What does Ricci's dyslexia have to do with the law? Very little, actually. The city of New Haven threw out the results of the test he took because it feared that the examination was discriminatory. That's because none of the African-American candidates, and only two of the 50 minority candidates, who took the test would have been eligible for promotion based on the results. Regardless of how you and I may feel about Frank Ricci or how much he deserved to be promoted, discriminatory results like that can run afoul of Title VII of the Civil Rights Act of 1964. And in this case the results of the test far exceeded the statistical cutoff that suggests a constitutional violation has occurred.

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When the case was argued before the Supreme Court last month, all of the justices seemed to agree that New Haven had to comply with valid federal statutes. Mr. Ricci did not challenge the constitutionality of Title VII. So the 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 did every report on the case begin and end with Ricci's compelling employment story? Might it have something to do with the fact that the conservative organizations supporting Ricci used his sympathetic tale as the centerpiece of a successful media blitz leading up to oral argument before the court? Could it be that they wanted to make sure the justices understood just how Title VII could impact the lives of ordinary Americans like Frank Ricci? Could they—oh the horror!—have wanted the justices to empathize with Ricci's plight?

We have heard a great deal this week from the right about the stomach-churning evils of empathy. How it's a call to "emotive," lawless, unhinged judicial conduct that turns the federal bench into a cross between Oprah's studio and a lunatic asylum. The quality of empathy—which President Obama has said is a priority in a Supreme Court pick—has been derided, mocked, scorned, and brought into close contact with Michael Steele's behind. Which makes it rather problematic when you consider that conservatives have in fact been playing the empathy card a lot more effectively than progressives in recent years.

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."

Now this is not the worst idea we've heard in recent months for re-conceiving the face of the Republican Party. And we want to be clear that there is nothing wrong with spotlighting your client's sympathetic life story; indeed, failing to do so could be considered a form of legal malpractice. But really, isn't it time for conservatives to turn off the phony outrage over judicial empathy, given the ways they've been successfully playing to it and capitalizing on it in recent years?

Every time Justice Antonin Scalia writes a habeas opinion that begins with the depiction of a gruesome murder, he is evincing empathy toward the victim. When Chief Justice John Roberts battled for the rights of white schoolchildren facing arduous bus trips and educational hardship due to school integration programs in Seattle and Kentucky, he was evincing empathy for the white "victims" of affirmative action. It's a patent falsehood that liberal judges weep and bleed for their plaintiffs while conservative jurists treat plaintiffs with stony indifference. And smart advocates on either side, knowing that, seek out "sympathetic plaintiffs" for litigation precisely because they are attempting to appeal to some part of the court's lizard brain; the part that does more than mechanically apply the law to the case.

We all should want judges to be empathetic to the litigants before them—be they Frank Ricci, the city of New Haven, Susette Kelo, or Lilly Ledbetter. And the fact is that we all should also want judges to follow the text of the Constitution and the law, even while the realities and hardships of these real-world litigants play out in the background of the case. The notion that conservative jurists follow the law while liberal jurists emote wildly from the bench is just another political story. And repetition doesn't make it any truer. The best judges combine empathy with adherence to the rule of law. Given that both liberals and conservatives have long sought to benefit from that fact, isn't it high time we were all honest enough to admit it?

Doug Kendall is president of the Constitutional Accountability Center, a think tank, law firm, and action center dedicated to the progressive promise of the Constitution's text and history.

Dahlia Lithwick writes about the courts and the law for Slate

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