When Obama first discussed his thinking about the Supreme Court nomination to replace Justice Souter, he mentioned empathy as a qualification. And that set off a firestorm of criticism from Conservatives. Republican National Committee Chair Michael Steele howled, “Crazy nonsense empathetic! I’ll give you empathy. Empathize right on your behind!”
In more temperate tones, Senator Orrin Hatch of Utah warned that if a judge were to show empathy, “politics, preferences, personal preferences and feelings might take the place of being impartial and deciding cases based upon the law, not upon politics.”
But conservatives misunderstand empathy and legal judgment.
Empathy refers to our capacity to feel what others feel, to know what it is like to walk in someone else’s shoes—and it is absolutely essential to sound legal judgment.
As I pointed out yesterday, judges have to interpret the law and apply the law to the facts that constitute the case on which they are ruling. Supreme Court justices are making decisions that will set policy and legal standards for the entire nation. So their decisions have consequences. But most judges are wealthy, well-educated elites, insulated from the struggles less privileged people must endure. And their occupation gives them a unique outlook on the world not widely shared by people outside the legal profession. If their conception of the impact of their rulings is bounded by the cloistered, privileged parameters of their own lives, the result will not only be bad law, it will be law that is partial to their social and economic class. It is simply a myth that there is some standpoint, from which a judge can rule, shorn of values and divorced from the circumstances of life. The belief that there is such a standpoint is itself an ideology and a pernicious one at that.
So how can judges rule impartially? Through empathy—our ability to feel what others feel, the moral capacity that conservatives are so quick to ridicule
As Obama points out in The Audacity of Hope: “Empathy … calls us all to task, the conservative and the liberal, the powerful and the powerless, the oppressed and the oppressor. We are all shaken out of our complacency. We are all forced beyond our limited vision.”
Empathy is a necessary condition of impartiality—at least the kind of impartiality that humans (as opposed to machines) are capable of—because empathy makes us imagine, and thus come to know, how our actions affect others.
Stanley Fish, in commenting on this flap over empathy in the New York Times, is alive to the role of values in applying the law but also seems to misunderstand the role of empathy. He writes:
“Rather than reasoning from legal principles to results, an Obama judge will begin with the result he or she desires and then figure out how to get there by what only looks like legal reasoning.
This is the answer to Dahlia Lithwick’s question, what’s wrong with empathy? It may be a fine quality to have but, say the anti-empathists, it’s not law, and if it is made law’s content, law will have lost its integrity and become an extension of politics. [Ed. Lithwick’s article is here]
Obama’s champions will reply, that’s what law always has been, and with Obama’s election there is at least a chance that the politics law enacts will favor the dispossessed rather than the powerful and the affluent.”
Fish seems to think a judge is on the horns of a dilemma—either she feels empathy and thus allows her preconceived moral ideology to govern her understanding of the law, or she coldly applies the law as written and thus enables her privileged position as advocate for the ruling class to be smuggled in disguised as objectivity.
But there need not be such a dilemma. Responsible judges begin with the law as written, constrained by precedent and legislative history. But then they ask whether the law so interpreted has the effect intended by lawmakers.
One needs empathy to answer this question. Empathy is not a conduit through which we splatter our preferences on an otherwise autonomous law. Empathy helps us discover the facts—it is fundamentally epistemological, not ideological.
