To get to conservatism’s heart, go to the kidneys

You hear a lot of “conservatives” diagnosing conservatism’s problems these days, and usually these apologists are the problem. Barry Goldwater objected to the burden of nice-guy proof that these people obsess over. He said conservatives are the more compassionate ones because they realize man is not just a material being, but a spiritual being that needs liberty and independence for his development: “the Conservative looks upon politics as the art of achieving the maximum amount of freedom for individuals that is consistent with the maintenance of the social order.”

But Goldwaterism, alas, is long gone. So when Wisconsin senator Herb Kohl defended the liberal Supreme Court nominee, Sonia Sotomayor, saying, “We want a nominee with a sense of compassion,” Republicans only contested compassion’s judicial relevance, and not the premise that a liberal nominee had more of it.

Conservative – i.e. originalist – justices have more empathy: they care much more about man’s spirit and constitutional democracy’s ability to maximize liberty, and they strive much harder to protect the constitution from the populist whims of the tyrannical majority. Empathy is upholding a constitutional yet flawed law, or striking down a reasonable but unconstitutional law, in order to prevent the greater abhorrence of unconstitutional despotism. At worst, originalism is less of an evil than the alternative of nonoriginalism, the “Imperial Judiciary” doctrine that begs Justice Scalia's question: “If the most solemnly and democratically adopted text of the Constitution and its Amendments can be ignored on the basis of current values, what possible basis could there be for enforced adherence to a legal decision of the Supreme Court?”

If the Senate Judiciary Committee really wanted to measure Sotomayor’s heart, they might start with kidneys. The Al Gore-sponsored National Organ Transplant Act of 1984 prohibits the commercial exchange of organs, citing the constitution’s “interstate commerce” clause as justification. The reasoning was that without this law, poor people would sell their kidneys to make money (the rebuttal is two-parts: One, so? Two, in a free organ market, would you settle for a poor man’s kidney anyway?). But with 13 Americans dying each day due to a shortage in organ donations, and with 80,000 condemned to sloshing their blood through a dialysis machine as they wait, it’s hard to make a case that this law has empathy on its side.

Fortunately, it does not have the constitution on its side either, thanks to the precedent the Court set on abortion. In debating the constitutionality of anti-abortion laws, the “pro-choice,” “personal liberty” rhetoric is a straw man: If it were really all about “penumbras” and “zones of privacy,” infanticide would be a fundamental right too (The real question is whether pre-viability fetuses are constitutionally-protected human beings). Regardless, the Court has dedicated cases like Griswold v. Connecticut, Roe v. Wade, and Planned Parenthood v. Casey to espousing the constitutional basis of “the right of privacy.” In Casey it poeticized, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Proving unconstitutional the federal law against profiting off of organ donations requires much less creativity. A “right of privacy” that trumps the federal government’s “interstate commerce” power simply must be shown to exist. Deciding what to do with your physical innards is a much clearer example of defining “one’s own concept of existence” than deciding whether to kill a fetus that is, to put it mildly, less you than your kidney. And while overruling the anti-abortion state laws required a complex argument of how the 14th amendment’s “due process” clause applied the 9th amendment protections to the states, the federal NOTA law is directly accountable for infringing on such protections.

Sotomayor called Roe v. Wade's abortion protections "settled law.” Would she have enough empathy to apply this precedent to a potential kidney case? Or would she adhere to precedent with as much loyalty as she has adhered to the Constitution?

Republicans say they cannot support a candidate picked for her empathy. Conservatives, however, wish she had more of it.