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While eschewing emotion - and its companion vulnerability - Obama should be careful not to sacrifice empathy the 'I feel your pain' connection that sustained Clinton. This connection is the shorthand people use to measure their leaders' intentions. If people believe you're on their side they will trust your decisions.

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The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.