Tuesday, May 26, 2009

Since When is Empathy a Bad Thing?

I always thought that empathy was the hallmark or a great lawyer, or a great judge. As Atticus Finch, the fictional inspiration for thousands of lawyers, said, in order to understand a man, you need to try standing in his shoes and walking around in them. It seems to me that this quality is absolutely essential to judging. A judge must try to understand the perspective of both sides of the issue before him. Indeed, the only way for a judge to try to remove his or her own biases, is to try to understand the case from the perspective of the litigants in the case. That is the meaning of empathy.

Empathy does not mean putting aside the law and trying to reach a pre-determined result. The best example of that I can think of is Justice Scalia's decision in the infamous Bush v. Gore. Anyone who thinks that only liberals are result-oriented should re-read that decision. Empathy also does not mean that you necessarily adopt the view of the widow or orphan in the case before you. Empathy means that you put yourself in the position of both of the litigants in the case. A good judge needs to be empathetic to the interests of business as well as the interests of labor, to the interests of the state as well as the interests of the individual. Being empathetic is not only critical to reaching a fair result, it is also essential to understanding the impact of court rulings on real human beings, which is another quality generally thought essential to judging.

Now that potential opponents of President Obama's judicial appointments are intent on turning "empathy" into a bad word, what is next? How about compassion? Patience? Equanimity? How about justice itself? If you really believe that all that matters is the cold letter of the law, and no human feeling should play any part in judicial decision-making; if you think that we can somehow interpret the letter of a statute or the Constitution without giving any thought to how those interpretations will play out in the real world, then we should really try to find a way to create robots that can act as judges, and all of the human qualities which have repeatedly been invoked by great judges in history should fall by the wayside.


  1. "Empathy" and "Law" do not belong with one another. "Emapathy" is an emotion whereas the "Law" is reason, or should be.

  2. Guess who said this:

    "I have followed this man's career for some time. He is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor."

    Give up? It was the first President Bush talking about his appointment of Clarence Thomas to the Supreme Court. Now why would he think that empathy was a desirable quality for a Supreme Court Justice? Here is the full quote: http://mediamatters.org/research/200905260034

  3. Give up what? Whomever appoints a judge can say whatever they want about them, it is what the nominee has said/says that matter.

  4. I agree. So why are people criticizing President Obama for saying that empathy is an important quality in a judge? Especially when President Bush I apparently agrees with him.

  5. I'm not saying anything about Obama I mean what Sotomayor herself has said.