On Friday, Professor Dorf posted "Empathy and Justice,"in which he offered some helpful thoughts about the "empathy" furor, that is, the attacks from President Obama's political opponents in response to his statement that he will pick a Supreme Court justice on the basis of, among other things, the potential justice's "empathy." What, the conservatives have asked, could that possibly mean? Surely it is a code word, but for what? Being "pro-abortion"? Plenty of cyber-ink has spilled -- and cable TV commentary has been bellowed -- on the topic.
My reaction to Obama's comments was that there was no code being used. Of course, it is not surprising that Obama's opponents would assume that he was using code, because that is their modus operandi. (For example, several years ago, when George W. Bush talked about justices who oppose Dred Scott, liberals scratched their heads and asked, "Huh?" We learned soon thereafter that being against Dred Scott was code for being anti-choice, based on an analogy between slavery and abortion that is apparently standard for Bush and his supporters.) Obama, on the other hand, was not saying anything that I -- as a card-carrying Liberal Democrat -- understood as a clever diversion. I may have missed a meeting or two of the Big Liberal Soy Latte-Sipping Conference, but I am sure that there is no entry for "empathy" in our handbook.
That does not mean that the word's meaning is obvious. Mike's description of his reaction to Obama's announcement was somewhat different from mine, which suggests that empathy means different things even to people who agree on quite a lot of things. I do agree with everything that Mike wrote on Friday, but his suggestions -- in particular, his argument that there is more than a bit of hypocrisy to this criticism of Obama from people who regularly criticize "liberal judges" for letting criminals off on technicalities, ignoring the pain of the victims of crime -- were not what immediately jumped to my mind. Instead, I took Obama's comments to mean that he would look for judges who would be unlikely to engage in, for lack of a better term, "gotcha" jurisprudence.
One of the major trends of conservative jurisprudence during the "movement" era has been to slam the courthouse door on litigants through procedural maneuvers that allow judges never to reach the merits of the case at hand. One Reagan-appointed appellate judge has notoriously stated (bragged?) that he tries to kick out at least one case per term on jurisdictional grounds. The entire line of cases regarding standing decided by the Rehnquist court seems to be a pretty good example of this desire. Similarly, the sovereign immunity revolution was all about saying that some people could not sue wrongdoers because of an imagined history that went beyond the text of the Constitution (Alden v. Maine having removed any pretense that there was a tie-in to the 11th Amendment). It did not matter that people were discriminated against by their employers, or were the victims of other legal wrongdoing, because they were simply prohibited from having their grievances heard in court.
Beyond these broad categories of cases, perhaps one can get a better sense of empathy from a specific, almost banal example. I once happened to watch the oral argument for an appeal of a contract case, and both the argument and the ultimate outcome stand out in my mind as examples of the difference between an "empathetic" judge and one who would not be on Obama's short list. (I saw the case argued during term of court and did some extra research on it due to my own interest.)
This was not at all a high profile case, and it involved two very small-time litigants. Even so, it involved a great deal of money to both the plaintiff and the defendant. The case involved a contract dispute where both parties argued in their briefs about a the meaning of single phrase from the original contract. Neither side so much as hinted that the context of the phrase within the contract mattered, and both sides directly engaged with each other's arguments in the exchange of briefs. Because there was a cross-appeal, there were extra briefs, and in the defendant's final brief the lawyer mentioned that the contract had not been included in the record on appeal. During oral argument, one of the judges on the panel simply would not let go of this fact, wasting the plaintiff's entire argument saying in a dozen different ways that the record should have included the contract.
As it turns out, there is no per se rule along the lines that the judge seemed to believe. When the unanimous panel later issued a ruling that simply dismissed the appellant's claim because of the contract's absence from the record, it cited circuit precedent for the idea that a panel can dismiss any case for which a key document is not available for the judges to review. Neither of the cited cases stood for that proposition, however. One precedent involved an argument about a case involving something like 70 photographs, only half of which were included in the record on appeal. Because the case turned on whether each photograph might have been relevant to a jury, it was of course impossible for the appellate judges to assess the appellant's claims without the photographs being included in the record. The other precedent similarly involved missing items that the defendant had at least argued would be essential to determine the outcome of the case. In the case at hand, by contrast, the only reason the defendant had brought up the issue (at the last moment) was apparently that the briefs had degenerated into an exchange of insults, and the defendant's lawyer was saying, in essence, "Oh yeah?! Well they didn't even include the contract in the record!" There was never any claim that there might be something in the missing document that would change the outcome.
Of course, one easy answer to this situation is to say that the appellant's lawyers screwed up. Leaving the key document out of the record was surely boneheaded, but should it have allowed the judges to refuse to reach the merits? My reading of the relevant law is that it absolutely should not have caused the judges to dismiss the case. Even on strictly black-letter terms, the outcome was incorrect. If we stipulate that this is a closer call, however, it seems to me that one way to view the notion of "empathy" is to suggest that we would want judges who understand that people sincerely want their day in court and have put a lot of anguish and money into bringing suit.
Some lapses are, of course, too large to ignore, and some slopes must be vigorously monitored. Where there is room for reasonable minds to differ, however, it seems that there are two kinds of judges -- those who are happy to say "gotcha" and kick out the case, and those who are willing to understand what is at stake for the parties. Note especially that following the latter course does not guarantee that the outcome of the case will be decided in favor of a supposedly "sympathetic" party but only that the outcome will depend on the law and the facts of the actual case.
I do not know if this is the type of thing that President Obama was thinking about when he included empathy on his list of important attributes for a Supreme Court justice. I do know that I would find it important to determine whether a potential nominee views non-substantive matters as "fun" ways to get rid of cases without reaching the merits. Even in a system that relies so heavily on procedure, I would prefer to have judges (and especially Supreme Court justices) who dismiss cases only when the law absolutely requires it.
-- Posted by Neil H. Buchanan