I fear that to some extent Chemerinsky and I are talking past each other. I don't disagree with Chemerinsky's claims that conservative justices (like liberals) sometimes base decisions on empathy and on their political ideology, and that judicial reliance on empathy cannot be completely eliminated. . . . Rather, my view is that reliance on empathy is a negative rather than a positive - whether practiced by conservative judges or liberal ones. . . . Ultimately, I think the real issue is not whether conservative and liberal judges sometimes rely on empathy (they both obviously do), but whether we should strive to reduce such reliance or increase it.
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