By Dan Froomkin
12:38 PM ET, 05/29/2009
The increasingly common conservative argument that empathy has no place in the judiciary is both blatantly disingenuous and utterly antithetical to the American judicial tradition.
These conservative critics aren't really against empathy -- they're just against empathy with what they consider the wrong people.
And they display a fundamental misunderstanding of the role of the judicial branch. A key role of the judiciary is to serve as a check and balance against the executive and legislative branches -- by protecting the rights of the powerless and the minority against the tyranny of the majority.
In fact, the critics don't even seem to understand the word that's upsetting them so. They see empathy as a synonym for bias. But empathy is simply the ability to understand where other people are coming from. It's not a zero sum game.
Empathy is, however, not only one of President Obama's key requirements in a Supreme Court nominee, it's also central to his political philosophy. As I explained two weeks ago in The Empathy War, Obama wrote in his 2006 book The Audacity of Hope that empathy is "not simply...a call to sympathy or charity, but...something more demanding, a call to stand in somebody else's shoes and see through their eyes." And it applies to everyone -- "the conservative and the liberal, the powerful and the powerless, the oppressed and the oppressor."
That said, it's no secret that Obama believes that a societal lack of empathy has been more damaging to some groups than others. "I believe a stronger sense of empathy would tilt the balance of our current politics in favor of those people who are struggling in this society," he wrote. "After all, if they are like us, then their struggles are our own. If we fail to help, we diminish ourselves."
Here's how law school dean Erwin Chemerinsky, writing in a Los Angeles Times op-ed, sees the role of empathy in judging: "Judging, especially at the level of the Supreme Court, is not and never has been a mechanical process of applying clear rules to yield determinate answers. It is a human activity in which there is often great discretion....In exercising this discretion, justices should be mindful of the consequences of their decisions on people's lives. That is what empathy is about, and it is hard to imagine wanting judges who lack empathy....
"[A]ll justices as human beings inevitably feel empathy. Most of today's Supreme Court justices apparently feel it more for businesses than employees, and more for victims of crimes than criminal defendants. Obama's wish that justices feel empathy for minorities and the poor should hardly be controversial, for the Constitution above all exists to protect minorities. The majority generally doesn't need a constitution for its protection because it can control the political process."
Even conservative, but not empathy-hating, David Brooks writes in his New York Times opinion column: "People without social emotions like empathy are not objective decision-makers. They are sociopaths who sometimes end up on death row."
He explains: "The crucial question in evaluating a potential Supreme Court justice, therefore, is not whether she relies on empathy or emotion, but how she does so. First, can she process multiple streams of emotion? Reason is weak and emotions are strong, but emotions can be balanced off each other. Sonia Sotomayor will be a good justice if she can empathize with the many types of people and actions involved in a case, but a bad justice if she can only empathize with one type, one ethnic group or one social class."
Nevertheless, leading conservative pundit Charles Krauthammer writes in his Washington Post opinion column that Obama's nomination of Judge Sonia Sotomayor, while essentially unstoppable, should be used to expose to the public how Democrats see "empathy as lying at the heart of judicial decision-making...
"Since the 2008 election, people have been asking what conservatism stands for. Well, if nothing else, it stands unequivocally against justice as empathy -- and unequivocally for the principle of blind justice," he writes.
"Figuratively and literally, justice wears a blindfold. It cannot be a respecter of persons. Everyone must stand equally before the law, black or white, rich or poor, advantaged or not."
But the figure of "blind justice" has typically not symbolized ignorance of either the real-world effects of legal decisions or the humanity of the people involved. It's been about avoiding bias -- particularly bias towards the powerful.
Similarly, Michael Gerson, the official speechwriter for "compassionate conservatism", decries empathy in his Washington Post opinion column. He writes about how Obama "opposed John Roberts for using his skills 'on behalf of the strong in opposition to the weak.' He criticized Samuel Alito for siding with 'the powerful against the powerless.' Obama made these distinguished judges sound monstrous because they stood for the impartial application of the law."
Gerson sees that as evidence that Obama "developed a theory that Supreme Court justices should favor socially unfavored groups."
But Obama wasn't saying he necessarily wanted the playing field tilted in favor of the weak -- just not tilted in favor of the strong. (And his concerns about those justices were utterly justified.)
That Gerson sees a justice system that doesn't automatically side with the powerful as inherently unfair says a lot about his own judicial philosophy.
Adam Serwer blogs for the American Prospect that "the conservative justices on the court...are not emotionless robots able to interpret the law without bias or personal experience coloring their rulings. They don't lack empathy; they simply don't empathize with the people Obama or liberals might like them to. Conservatives want their justices to empathize with the religious, the unborn, and powerful corporate interests. Liberals want their justices to empathize with women and minorities, workers and the downtrodden."
Eugene Robinson writes in his Washington Post opinion column: "President Obama's nominee for the Supreme Court, Judge Sonia Sotomayor, is a proud and accomplished Latina. This fact apparently drives some prominent Republicans to a state resembling incoherent, sputtering rage."
He writes about the two major grievances conservatives have against her, and concludes: "In both instances, as Sotomayor's critics saw it, minorities were either claiming or obtaining some kind of advantage over white males. Never mind whether this perception has any basis in fact. The very concept seemed to be enough to light a thermonuclear fuse."
In other Sotomayor coverage, Jo Becker and Adam Liptak write in the New York Times that she "has a blunt and even testy side."
But "Laurence H. Tribe, a Harvard law professor who served as an adviser in the process that led to Judge Sotomayor’s selection for the Supreme Court, said the White House had found concerns about her temperament unfounded."
And Second Circuit colleague Guido Calabresi tells the Times of the criticisms: "Some lawyers just don’t like to be questioned by a woman....It was sexist, plain and simple."
Raymond Hernandez and David W. Chen, also writing in the New York Times, try to make Sotomayor's presence on the board of the Puerto Rican Legal Defense and Education Fund in the 1980s sound controversial. Because "her critics, including some Republican senators who will vote on her nomination, have questioned whether she has let her ethnicity, life experiences and public advocacy creep into her decisions as a judge," they write that it's "inevitable, then, that her tenure with the defense fund will be scrutinized during her confirmation hearings."
But later on, they acknowledge: "Of course, it is not as if a lawyer and judge with a history of involvement in racial issues has not made it onto the Supreme Court. Thurgood Marshall, a fierce advocate for racial justice as a lawyer for the N.A.A.C.P., sailed onto the highest bench in the 1960s."
Robert Barnes and Michael D. Shear write in The Washington Post: "The White House scrambled yesterday to assuage worries from liberal groups about Judge Sonia Sotomayor's scant record on abortion rights, delivering strong but vague assurances that the Supreme Court nominee agrees with President Obama's belief in constitutional protections for a woman's right to the procedure."