Being Fair is the Best Way to Be Compassionate, Wilkinson Argues

The Hon. J. Harvie Wilkinson III spoke to a packed Caplin Pavilion Feb. 19.

Conservative judges have been labeled unfeeling because of their emphasis on neutral interpretation of laws, the Hon. J. Harvie Wilkinson III, a judge on the Richmond-based U.S. Court of Appeals for the Fourth Circuit, told a packed audience in Caplin Pavilion Feb. 19. But an impartial judiciary with public confidence supporting it is ultimately more compassionate than one in which emotions subjectively influence disparate outcomes, he argued. Wilkinson, considered a potential nominee for the U.S. Supreme Court, spoke on "Why Conservative Jurisprudence is Compassionate" at the invitation of the Student Legal Forum.

The reason conservatives feel a need to defend themselves on compassion is an outgrowth of different views of judicial responsibilities. "To conservative judges," he said, "the Constitution consists largely of a set of negative prohibitions upon government. To liberals, the Constitution seems to confer upon deserving plaintiffs a set of positive entitlements as well … . The liberals have worked hard to corner the market on compassion.

"The judicial battle came to be seen as liberals siding with deserving individuals and conservatives siding with the government or corporate oppressor," Wilkinson explained. "Plaintiffs appeared at the courthouse door with poignant circumstances. The conservatives who rejected their claims might be seen ipso facto as against the little guy and in favor of society's privileged overlords."

The case against conservative jurisprudence has accompanied two developments, Wilkinson said. "One is the rise of law and economics. The other is the fondness for bright-line rules. Taken together they suggest that the conservative approach to law is all mind and no heart."

"The indictment against law and economics is its supposed obsession with costs and benefits and its exultation of efficiency above all else," he said. The fear is that in the name of curbing the costs of litigiousness, the conservative is "willing to leave the individual plaintiff on the slagheap" or "overlook the bedrock principle that law must provide a remedy for single individual wrongs."

As an example, Wilkinson cited the case of professional golfer Casey Martin, who suffers from a degenerative circulatory disorder and asked to use a golf cart during tournaments. The PGA denied his request but the U.S. Supreme Court required that the accommodation be made. In dissent, Justice Thomas argued that the PGA's rules are clear and applied fairly and should not be re-evaluated on a case-by-case basis.

Conservative jurisprudence is therefore said to be "soulless," Wilkinson said, because conservatives seem more concerned with impacts on hypothetical future cases than with the real live controversy before the court.

Wilkinson asserted that respect for rules is respect for the democratic process that created the rule. "If compassion for an individual is seen to come at the expense of fair treatment for everyone, then it is at least arguable that the easy resort to exceptionalism is not a compassionate route."

Wilkinson said the issue is often a matter of degree and a strict adherence to rules "should not carry the day in every circumstance."

Wilkinson said compassion rightly belongs in our interactions at home, at work and in the community, but the courtroom should be neutral and decide on the basis of evidence, not emotion, if it is to function as it must in a democracy.

Social compassion is properly the business of politics and lawmaking, he said. The legislature's job is to pass general rules and a judge's duty is to see that the rules are applied fairly to individuals, Wilkinson argued.

"For the judiciary to assign itself the goal of redressing general social inequities is to set a task so large that it will come to corrupt what is good and distinctive in the remedial tasks that law can perform."

But to be truly compassionate, one must also consider the consequences of choices because they may end up counterproductive. Parents, he said, appreciate that indulging one's children can have negative effects. "Good intentions alone are seldom enough."

In the legal order, "a purely compassionate approach is not compassionate at all. Only in combination with other qualities of public intelligence and personal character can compassion become a truly magnanimous force," the judge asserted.

Borrowing Abraham Lincoln's words, Wilkinson argued that "reason — cold, calculating unimpassioned reason — must furnish all the materials of our future support and defense."

On the matter of whether favoring the individual over the collective is more compassionate, Wilkinson said business entities provide essential goods, services employment, and they reward investment. "The fact that business, like any other institution, may stray from these purposes does not mean that the purposes are themselves not worthwhile."

Furthermore, individuals can suffer when collectives fail to act; for example, when out of fear of lawsuits hospitals and pharmaceutical companies curtail services or stop product development. Excessive injury settlements are therefore having detrimental impacts on the health care system as a whole and that outcome is not compassionate.

Similar tradeoffs appear in criminal cases, he said. Truly compassionate rulings are characterized by judicial modesty that acknowledges the difficulty in knowing what the ideal resolution of a conflict would be.

Wilkinson said legal culture has become too polarized with conservatives hastily labeled unfeeling and liberals accused of being "politically correct."

"Common ground in the law will prove elusive if one side harbors the thought that the other is mean-spirited," he said. Both sides of the debate should recognize that the other believes compassion is a virtue and is trying to achieve compassionate outcomes.