Codeword “Empathy”

Conservatives already know exactly who Obama will appoint to the Supreme Court, write Eric Alterman and Danielle Ivory.

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The Roberts Court, photographed in 2006, is set to have a new member, as Justice David Souter, seated to the far right, will retire at the end of the term in June. (AP/J. Scott Applewhite)
The Roberts Court, photographed in 2006, is set to have a new member, as Justice David Souter, seated to the far right, will retire at the end of the term in June. (AP/J. Scott Applewhite)

In the wake of Justice David Souter’s retirement announcement, we’ve heard all about his replacement. Granted, President Barack Obama hasn’t actually nominated a replacement yet, but right-wing pundits, using the secret pundit power of Total Telepathy, have managed to divine the identity (and also, importantly, sexuality) of this lucky individual. And boy do they hate her. Or him. Or it. Whatever it is—it’s going to ruin everything. How do they know? Well, it’s pretty obvious what kind of judge Obama is looking for. This is what the president said he wants:

“I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people’s lives—whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I view that quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and—”

Mere mortals like you and I might have found this statement completely innocuous, perhaps even overly vague. Thank goodness, then, for the likes of Senator Orrin Hatch (R-UT) and his decoder ring. Hatch informed George Stephanopoulos that, by “empathy,” Obama clearly meant “activist judge.”

“He’s going to select judges on the basis of their personal politics, their personal feelings, their personal preferences. Now, you know, those are all code words for an activist judge, who is going to, you know, be partisan on the bench…. [Obama is] bright enough to know that those comments basically indicate that politics, preferences, personal preferences, and feelings might take the place of being impartial and deciding cases based upon the law, not upon politics.”

Stephanopoulos was too respectful to ask just how Hatch happened to know all this. And no one in the punditocracy thought to wonder whether it was strange why President Obama wasn’t bright enough to think up a better code because pretty much everyone cracked it in about three milliseconds.

NBC’s David Gregory joined the ESP society, too, asking his guests on "Meet The Press," “Empathetic. Is that code to you for an activist judge?” Right-wing consultant and CNN pundit/codebreaker Mary Matlin also waved her membership card around, taking the “analysis” a step further into the minds of tens of millions of voters. She explained to CNN’s Wolf Blitzer, “That empathy quotient is a code word for just prudential social engineering; that’s what conservatives and a lot of independents think is the province of the legislative branch. That’s the point, this is not the kind of change that people voted for.”

No such ESP team would be complete without Fox’s Laura Ingraham, who informed the rest of us that “[empathy] is a singularly loopy idea for a qualification for justice.” The Washington Times confirmed everybody’s worst fears. Wendy Long, counsel to the conservative Judicial Confirmation Network, called Obama’s quality of empathy a “lawless standard:”

“He [Obama] has boldly proclaimed that he intends to make sure his nominees to the Supreme Court don’t harbor any crusty fealty to the written Constitution, or the millenniums of Western law that undergird its principles, or to the timeless truths that underlie our Declaration of Independence.”

Boy, they got him now. It was nice racket while it lasted.

Then again, there’s “code” and there’s code. The imaginary kind can really rile up the troops, but sometimes the situation is different. For instance, as Steve Benen of Washington Monthly’s “Political Animal” blog notes, we did, in fact, have to deal with real code words when President George W. Bush described his preference for judges:

“Obama hasn’t used ‘code’ in describing the qualities he’s looking for in a justice. This is using code.

At a press conference two days after his re-election, President Bush was asked about what sort of Supreme Court justice he might nominate if and when the ailing Chief Justice William H. Rehnquist retires. Mr. Bush repeated the pledge he made in the presidential debates: ‘I would pick people who would be strict constructionists.’"

What’s more, Benen added, “If we really want to talk about ‘activist’ judges, [Sen. Orrin] Hatch may want to take a closer look at the current Roberts court.” In fact, this whole nutty idea of the secret meaning of “empathy” to mean “activist” is even nuttier than it first appears once you examine the meaning of the word “activist” in the conservative lexicon.

Pat Buchanan explained to Joe Scarborough, “The conservatives do have and Republicans do have a real good issue on the court when you ask people, ‘Do you want conservative constitutionalists as justices or liberal activists?’ They win that hands down.” That’s the choice. Conservative constitutionalist or liberal activists.

Not so fast, Kemosabe. In right-wing mythology, the “activist judge” is often a “codeword” for a baby-killing and gay-marriage loving closet Commie that liberals invite to the bench to mock our founders’ intentions. In fact, it’s Opposite Day yet again in conservative world, should anyone bother to examine the actual evidence.

In Why We’re Liberals, I (Eric) sought to examine the “activist judge” charge and examined the careful work of two sets of studies, each deploying different but entirely credible—and sensible—sets of criteria to scrutinize the history of judicial decisionmaking. Paul Gewirtz and Chad Golder of Yale Law School measured “activism” by calculating the number of decisions taken that deliberately declared congressionally sanctioned legislation as unconstitutional. They discovered that, beginning in 1994, Republican-appointed justices struck down considerably more laws than their Democratic-appointed counterparts. Meanwhile, Thomas Miles and Cass Sunstein of the University of Chicago Law School looked at the frequency with which appointed justices chose to strike down acts of the executive branch. They found that, between 1989 and 2005, “the most liberal members of the Court were the most likely to vote to uphold the decisions of the executive branch. The most conservative members of the Court were the least likely to vote to uphold those decisions.”

Perhaps the great Ronald Reagan put it best when he explained, “Facts are stupid things….”

Eric Alterman is a Senior Fellow at the Center for American Progress and a Distinguished Professor of English at Brooklyn College. He is also a Nation columnist and a professor of journalism at the CUNY Graduate School of Journalism. His seventh book, Why We’re Liberals: A Handbook for Restoring America’s Most Important Ideals was recently published in paperback. He occasionally blogs at

Danielle Ivory is a reporter and producer for the American News Project. She lives in Washington, D.C.

This column was recently named as a finalist in the category of “Best Commentary—Digital” for the Mirror Awards. The series of columns judged can be found here.

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Eric Alterman

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