In a Slate essay, Doug Kendall and Dahlia Lithwick argue that “conservatives have in fact been playing the empathy card a lot more effectively than progressives in recent years.” Their argument is that conservative organizations pursuing litigation “have tracked down and capitalized on sympathetic plaintiffs to win cases and move the law in their favored direction.” Therefore, they ask rhetorically, “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?”

Kendall’s and Lithwick’s rhetorical question is a non sequitur. It’s entirely consistent for conservatives (1) to recognize that lots of judges are inclined to indulge their subjective senses of empathy and therefore to play to that inclination when litigating cases, and (2) to decry the fact that judges succumb to that inclination.

Kendall and Lithwick also spend two sentences supposedly showing that Justice Scalia and Chief Justice Roberts have “evinc[ed] empathy” toward certain victims. The relevant question under the Obama “empathy” standard is whether their analysis of the legal issues was influenced by their alleged empathy for certain persons. Nothing in their two sentences remotely establishes such an influence.

I’m puzzled by Kendall’s and Lithwick’s concluding remarks, which strike me either as self-contradictory or as indecipherable:

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 best judges combine empathy with adherence to the rule of law.

What role, exactly, do Kendall and Lithwick think that empathy should properly play? Why don’t they tell us?