President Obama’s remarks about judicial empathy have inspired howls of protest from the right and furrowed the brows of legal traditionalists everywhere.
Sympathy means feeling sorry for another person; empathy means feeling another person’s pain as if it was your own. In a campaign speech in 2007, Obama spelled out the case for judicial empathy: “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.”
So what could possibly be wrong with that?
Plenty, say the critics. As the image of a blindfolded Lady Justice suggests, the law is supposed to be blind. Judges are to rule strictly on the basis of the evidence before them and “settled law”. In theory, it shouldn’t matter whether the defendant is rich or poor, beautiful or ugly, famous or infamous, black or white, Christian or Muslim–the law treats all defendants and plaintiffs the same.
Judges who feel either empathy or revulsion for the poor wretch quivvering before the bar of justice are departing from the strict canons of judicial objectivity. A judge, the reasoning goes, is a referee who has no interest in the final score; he just wants the players to play by the rules.
So, Texas senator, John Cornyn says that Judge Sonia Sotomayor, Obama’s choice to fill the vacancy on the Supreme Court, “must prove her commitment to impartially deciding cases based on the law, rather than based on her own personal politics, feelings, and preferences”.
Is it just me, or does this line of reasoning reminiscent of Alice in Wonderland? The Queen of hearts (a spoof on Queen Victoria) is utterly lacking in empathy: “The Queen had only one way of settling all difficulties, great or small. ‘Off with his head!’ she said, without even looking round.”
Fortunately for Alice, the kind-hearted King of Hearts quietly commutes every death sentence his tyrannical wife imposes. In the real world, empathy and good judgement are sisters.
Does anyone really believe that Samuel Alito or John Roberts are never influenced by “personal politics or feelings”? Can anyone imagine John Cornyn showing the slightest concern that the two most recent additions to the Supreme Court might allow their conservative political opinions to influence their rulings? Of course not. The men were selected because they shared the president’s conservative values.
David Souter, the justice Sotomayor has been nominated to replace, has outraged ideological conservatives precisely because he refused to be guided by ideology.
Supreme Court justices certainly strive to leave subjective considerations out of the deliberative process; but the same apriori judgments and impulses that shape personal politics and ideological leanings bubble to the surface when legal issues are being weighed. If you believe abortion is always wrong you will ascribe relatively little constitutional weight to a woman’s right to choose. Why did the Supreme Court value the principal of equal access to education over “state’s rights” in 1954? For the same reason that the same court in earlier generations would have made the opposite call.
Empathy shades into bias only when jurists feel the pain of people like them while demonstrating utter disregard for folks on the opposite end of the social spectrum. The opposite of empathy is ignorance not objectivity. Who wants to be judged by a woman who has no sense of who you are, how you feel, how you have struggled and what you value?
In criminal cases built on circumstantial evidence much depends on how you view the defendant. Is this man capable of such a foul deed? This question must be answered, and a lack of empathy ensures a wrong answer.
Empathy generally fits hand-in-glove with the standards of due process. If you feel the humanity of a defendant you will want that person to get a fair, open and constitutional hearing. Corners are cut when nobody in the courtroom gives a damn.
G.K. Chesterton was known for blending morality with good humor (an unusual combination). Exactly 100 years ago, he served as a juror and was not impressed with the professionals in the courtroom. The problem: no empathy.
“Now, it is a terrible business to mark a man out for the vengeance of men,” Cheston observed. “But it is a thing to which a man can grow accustomed, as he can to other terrible things; he can even grow accustomed to the sun. And the horrible thing about all legal officials, even the best, about all judges, magistrates, barristers, detectives, and policemen, is not that they are wicked (some of them are good), not that they are stupid (several of them are quite intelligent), it is simply that they have got used to it. Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop.
Unlike legal professionals, Chesterton felt, a good juror empathizes with the victim, the alleged perpetrator and the families of both parties. This doesn’t make them biased. Biased jurors, like biased judges, feel the pain of the victim but give no thought to the humanity of the defendant. Jurors (and judges) get it wrong in capital cases precisely because the facts are so distressing. The blood of the victim calls out for justice with such urgency that no one bothers to ask if the right person has been summoned to the bar of justice. The thought of the crime going unpunished is so disturbing that the humanity of the accused vanishes. The accused must be guilty because the crime is so heinous.
Of course, the desire to punish must be held in abeyance until the guilt-innocence question has been decided. Judges who prejudge a case are tempted to rule for the state at every turn because it hastens the inevitable. Judges without empathy are bad judges.
The empathy debate pits reformers who believe life experience impacts judgement against traditionalists who believe nine white males would be perfectly capable of deciding any legal issue. Was it purely incidental that five of the nine justice who decided the Dred Scott case in 1857 were slave owners? Adding African Americans to the judicial mix would have changed nothing, traditionalists argue. In fact, black judges would have stripped the blindfold from Lady Justice because they identified personally with the travail of American slaves.
George Will dismisses Judge Sotomayor as a conventional liberal: “She embraces identity politics, including the idea of categorical representation: A person is what his or her race, ethnicity, gender or sexual preference is, and members of a particular category can be represented – understood, empathized with – only by persons of the same identity.”
Quite so. None of us are impartial. We enter the world as self-serving tyrants and only painful encounters with other people can change us; that’s why we need religion. Experience gives us the capacity for judgement. Despite the best of intentions and a world of good will, if we know only people who look and think like us we will have a cramped view of the world. As we strive to feel as others feel as others feel we make real moral progress, but our capacity for empathy is tragically limited.
In explaining his vote against John Roberts, then-Senator Barack Obama noted that the well-groomed jurist had “far more often used his formidable skills on behalf of the strong in opposition to the weak” and “seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process.”
Men like George Will have no problem with “the remnants of racial discrimination”. They assume that standard-issue white American males will make the right call. They can be impartial because they lack empathy.
Friends of Justice 
As any trial lawyer knows, empathy is not only important but essential to a good trial judge. The probably with most Republican appointees over the past several years, both on the trial and appellate bench, is that they either have corporate or government lawyer backgrounds–and have never represented individuals, only corporations. Thus, they tend to side with the government or the “establishment”, rather than on the side of individual rights.
And what is the goal of the nay-sayers (I guess they are Republicans)? Do they think Obama will pick am ideologue if they somehow keep this nomine from being accepted? What’s the point? Is it just negativity for the sake of being negative?
Two have already agreed, so I can’t say it’s just you, but I see nothing wrong with the quotation from Senator Cornyn except for the “must prove” part– Sotomayor need not prove anything; she has a record, and will stand on it. Other than that, Cornyn only called for impartiality. The Queen of Hearts was knee-jerk,condemning without considering the facts or the law. Not the same thing.
I expect Judge Sotomayor will be confirmed without major difficulties given the numbers in the Senate, plus many conservatives will rationalize that she’s “only replacing Souter.” But there will be a certain amount of opposition under the principle of “payback is hell.” Obama voted “no” on a lot of judges his fellow Democrats approved, so if he doesn’t have a cakewalk it should be little wonder. Practicing criminal defense, I’m no Justice Roberts fan, but I’m concerned that Obama’s explanation for his vote against Roberts could be taken to mean that he thinks a judge unacceptable who decides cases on the facts and the law if the “weak” side doesn’t win the decision; i.e., the redistributionist, reparational view.
Judicial confirmations were not a big fight until the Bork nomination, and to be fair and honest, resistance to this presidential prerogative has been mainly from the Democratic side. Some openly vowed that if they could help it, _no_ Bush appointee would ever be seated. This is neither helpful nor constitutional. Nor does it make much practical sense, considering that both Souter on the Supreme Court and Sotomayor on the district court were Republican (Bush 41)appointees. In fact a large number of Bush 43 appointees at all levels were prevented for a very long time from even getting up-or-down votes in the Senate, out of this partisan animus, even as the federal courts suffered from an acute lack of judges. Many who did not wish to politicize judicial selection are fed up, and feel if they can’t beat ’em, join ’em. So it is what it is.
The essay sounds almost like a pitch for racial and gender quotas on the Supreme Court. This would be a step backward. Sometimes I think nobody learned anything from Dr. King, who preached colorblindness. Racial differences must be overcome, rather than emphasized and having everything structured around them. While there is more work to be done, the glass ceiling is shattered: the President of the United States is black. He could best serve his people in both the narrow and broad senses by losing all self-consciousness about race. But politicians will be politicians, and bloc voting being what it is, the temptation to pander to it is great. Frankly, I’m getting pretty sick of seeing “white American males” vilified wholesale. To qualify that with a phrase like “standard-issue” is comparable to making generalizations about “the typical black male.” Any good judge is capable of dealing with the remnants of racial discrimination. It seems fundamental that two wrongs don’t make a right.
Blind Justice is a principle established to guard against corruption and tyranny, and it is far older than the United States. It underlies the U.S. Supreme Court motto, “Equal Justice Under the Law.” Isn’t that what we should want? Stripping the blindfold from Justice would destroy her completely, plunging us into a tribalism in which all is based on perceived kinship and connections. Another legal slogan, one with religious underpinnings, is “Justice Tempered With Mercy.” If there is to be empathy, and there should be, let it be empathy for all.
I suspect their view is that he _did_ nominate an ideologue, and not the kind they would like. They are just whistling Dixie if they think Obama would do otherwise in a second round. It will be interesting to see whether the debate over Sotomayor is strictly along partisan lines.
King: As always, thanks for your comments. I will confine my response to your evaluation of Cornyn and Obama’s remarks. Cornyn was certainly standing on solid precedent when he called for unbiased and apolitical decision making. The problem is that, as David Brooks has recently argued, the emotional generally trumps the rational. We are all partisan beings and these commitments drive our judgment. Cornyn was spouting traditional bromides that don’t accord with emotional reality.
Empathy allows us, to a limited extent, to be rational. The Queen of Hearts was utterly irrational because she was utterly selfish–like a two year-old.
Now, about Obama’s remarks. He wasn’t suggesting that Roberts should have exercised his powers of intellect on behalf of the poor instead of the powerful; he was saying that Roberts had demonstrated a pattern of instinctively siding with the powerful–a very different matter.
I do believe that white males are capable of empathy; but only when in the company of women and minorities. The same goes for jurors. White jurors deliberate differently when black and Latino jurors are present than they do in an all-white jury. The same is true in reverse, but that is generally an academic issue. Thurgood Marshall’s presence on the Supreme Court changed the way white justices deliberated. Hence, having a Latina on the court will make a profound difference.