Whelan's Claim That Obama Wants Judges To Employ A "Lawless Empathy Standard" Runs Into Trouble

Last week, National Review Online's Ed Whelan attacked a Huffington Post piece for suggesting that Supreme Court Justice Samuel Alito employed empathy when he sided against the Westboro Baptist Church in the First Amendment case of Snyder v. Phelps, which dealt with the church's despicable protest at a military funeral. Whelan declared that Alito reached his conclusion by relying on "law, not empathy." This week, however, Whelan admitted that it's not out of the realm of possibility that Alito did indeed rely partly on empathy in the case.

On Monday, Whelan -- a former clerk for Justice Antonin Scalia and a former high-ranking Justice Department official -- wrote: "To be sure, a critic could speculate that Alito adopted the legal framework that he did [in Snyder] out of 'empathy' for the soldier's father."

Whelan's admission that it is plausible to argue that Alito relied on empathy is important. Whelan has been one of the chief critics of President Obama's statement that he would seek a Supreme Court nominee who has the "quality of empathy" and is "dedicated to the rule of law." Whelan, in fact, has argued that Obama has embraced a "lawless empathy standard."

As we have pointed out, Alito's sole dissent in Snyder certainly seems to rest at least in part on empathy. Alito cites a precedent for the proposition that "the First Amendment does not shield utterances that form 'no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.' " But his opinion devotes more than 1,200 words to a recitation of the specifics of Westboro's attack against the family of the fallen soldier. Surely, such a lengthy exposition wasn't necessary to make the legal point about how Westboro's actions were "an abusive attack on a private figure rather than speech on a matter of public concern." 

In addition, while Whelan rarely, if ever, acknowledges it, during his Supreme Court confirmation hearing in 2006, Alito stated that while it was his "job to apply the law ... not to change the law or to bend the law to achieve any result," "[w]hen I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account."

So, given Whelan's acknowledgement that it is plausible that Alito relied at least in part on empathy to reach his decision in Snyder, does that mean he thinks that it's possible that Alito acted lawlessly, or that empathy is only lawless when employed by a  judge who was nominated by a progressive? Or might it mean that it is not really lawless to employ empathy after all?