Elena Kagan Could Cite Texas Judge Sharon Keller as Opposite of Judicial Empathy

In just 10 days, Supreme Court nominee Elena Kagan will almost certainly face questions about the notion of "empathy" and its role in judicial decision-making. In her first appearance before the Senate Judiciary Committee, Republicans will likely use the topic to try to portray Kagan as a wuss who will put personal sympathies ahead of jurisprudence. Democrats on the panel will mention it to try to portray her as a compassionate jurist who won't lose sight of the human stories behind the legal standards and rules.

Rather than wait for overwrought analogies from both sides, Kagan should use the forum, and the opportunity, to educate the committee and the rest of the nation about what "judicial empathy" really means -- and also what it doesn't mean. During her confirmation hearing, the nominee can do that -- quite quickly, easily and proactively -- simply by recounting the shocking story of Judge Sharon Keller of the Texas Court of Criminal Appeals. Judge Keller (known to some as "Killer Keller" even before the incident in question and heavily fined since for disclosure violations) has justifiably become the poster child for judicial callousness toward a condemned man named Michael Richard.

On the morning Richard was scheduled to die by lethal injection, the United States Supreme Court accepted a case about the constitutionality of lethal injection protocols -- a material and relevant development that should have almost automatically stayed Richard's execution upon the filing of a simple request to do so by defense attorneys. But as
Christy Hoppe of The Dallas Morning News recounts, here is what happened instead:

Under longtime, unwritten rules of the court, any communication about the Richard appeal should have been directed to the duty judge, Cheryl Johnson, who would stay late to receive any pleadings. But when the call came asking the clerk's office to stay open late, the court's general counsel called Keller -- not Johnson -- saying he thought it was an administrative matter. At Keller's direction, the Texas Defenders Service was told that the clerk's office would close at 5 p.m. But the defense lawyers did not call other judges to file the papers directly, which is a standard legal procedure. Keller did not instruct the staff to either let Johnson know about the late-filing request or let the defense lawyers know they should call Johnson. Neither did Keller acknowledge her phone conversation to colleagues the next day when they wondered aloud why no pleadings had been filed.

Because no appeal could be filed, Richard was shortly thereafter executed. Keller's repeated and stark choices against Richard that day -- turns out she left early to meet a repairman at her house -- are precisely what President Barack Obama means when he talks about judicial empathy on the federal bench. In 2007, then-Senator Obama said: "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges." He's repeated the same themes many times since -- and been heavily criticized for doing so.

This empathy -- this "heart," as President Obama puts it -- does not ignore facts or precedent or legal reasoning. It's not an empathy that tips the scales on the merits. It's not an empathy that is left or right or in between on the ideological scale. It is, I suggest, an empathy that travels upon a more basic and essential human path. It's an empathy where the judge doesn't deliberately sabotage a last-minute, death row appeal and then try to cover it up the next day. It's an empathy for the spirit of the law and not just its letters. The loftier goals of justice and mercy and fairness, not to mention local court rules, required Judge Keller to do more for Richard that fateful day. She didn't. It wasn't a sin of omission. It was a sin of commission. It was more than callow indifference -- and there is no excuse for it.

Three years after Keller closed the courthouse doors on Richard's attorneys, three years after Richard was executed, Texas is still trying to figure out what to do with its increasingly embarrassing judge. Last year, the Texas State Commission on Judicial Conduct investigated the matter -- its examiners concluded that Keller had engaged in "willful and persistent" misconduct. Earlier this year, a special master also criticized Keller for "highly questionable" conduct but then recommended that she not be removed from office. On Friday, another hearing took place before the commission itself, begging the question: how bad do judges in Texas have to get before they get kicked off the bench? A decision is expected soon.

Part of the reason why the White House has been under siege for promoting "judicial empathy" among its federal court candidates is that it's such a hard concept for its supporters to describe in any sort of practical or eye-catching way. After all, what really is an empathetic decision? And that makes Keller's miserable work in Texas such a political gift for Kagan's supporters. The Keller story is a made-for-television tale that works marvelously as a sad example of the opposite of "judicial empathy" -- of what can happen when judges unhinge themselves from being decent human beings.

For these reasons and more, when compared to Judge Keller, nominee Kagan already looks as wise and as thoughtful as King Solomon -- without yet having issued a single ruling in her life. So whatever happens to Keller in Texas over the next few weeks, the story could and should impact the Kagan circus which hits Washington on June 28. If Republicans on the Judiciary Committee plan to blast Kagan on judicial empathy, don't be surprised if Kagan and the Democrats hit back hard with tales of the anti-judge in Texas. All Kagan has to say is this: Judicial empathy would have told me to let the condemned man file his appeal.