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Unsympathetic Argument Against Empathy

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."

By Dan Froomkin  |  May 29, 2009; 12:38 PM ET
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Hi Dan,

Yes, exactly; it's empathy with the wrong people that has the right wing all hot and bothered. The Court has shown considerable empathy for big business and they never uttered a word in criticism of that.

Posted by: jpk1 | May 29, 2009 1:45 PM | Report abuse

As Dan quoted, the absence of empathetic considerations is a clinical disorder. Happily for sociopaths, they have a political party of their own, but did anyone seriously expect Obama to nominate a libertarian?

Posted by: chrisfox8 | May 29, 2009 2:25 PM | Report abuse

Obama did not say he wants a circumscribed empathy, an empathy for some groups and not others. He held up the full virtue of empathy - the ability to empathize with each and every person in turn. While no one achieves perfect empathy, the goal is to see all points of view. The degree to which we fail to do this has a name - bias.

I think it is accurate to equate the terms 'empathetic' and 'unbiased.' at least in a discussion of judges.

Dan, and many others (David Brooks most forcefully), have already debunked the idea that a judge, or any sane human, could actually possess empathy for no one.

It would be reasonable for Republicans to express the reservation, regarding judge Sotomayer, that she is dangerously uneven in her empathy and that in fact she is biased. This would lead to a discussion of her record looking for evidence of bias.

Posted by: ath28 | May 29, 2009 2:36 PM | Report abuse

Sotomayor is certainly qualified. The only question is, will she have the cojones to go head to head with Scalia, Thomas & company? I wish Hillary was interested in a Supreme Court appointment. She would havae given the ultra-right a run for their money.

Posted by: shaman7214 | May 29, 2009 2:42 PM | Report abuse

In an age where we can cherry-pick our news sources so we don't have to listen to anything we don't already agree with, many people define "justice" solely as "a decision I approve of."

The David Brooks piece referenced above is, in particular, very good.

Posted by: Gallenod | May 29, 2009 2:45 PM | Report abuse

Great column!

This discussion, being driven by right wing knee-jerk reactions to supreme court nominee (fill in name here), is hardly the best use of the nation's time.

The sooner we can refute and neutralize crass arguments that look for any excuse to introduce base emotions into the fray, like calling Sotomayor racist, the sooner we can get on to the nation's business!

Posted by: farkdawg | May 29, 2009 2:53 PM | Report abuse

Empathy is EXACTLY what the right is arguing for in the Ricci/firefighter case. They don't want the application of the law, they want empathy for the discriminated-against-but-not-really firefighter who spent a lot of time and money studying for the test.

GOP hypocrisy on core issues of their own platform is exposed weekly, yet they're still considered a valuable and relevant party. I don't get it.

Posted by: BigTunaTim | May 29, 2009 2:56 PM | Report abuse

Thank you for the column. You put the discussion on the place for "empathy" in judicial temperment in its proper light. I hope your analysis receives wider consideration on the "right" side of the political spectrum so that we can put this meaningless debate to an end.

Posted by: warrenjasper | May 29, 2009 3:06 PM | Report abuse

ok, here is the definition of empathy:

: the action of understanding, being aware of, being sensitive to, and vicariously experiencing the feelings, thoughts, and experience of another of either the past or present without having the feelings, thoughts, and experience fully communicated in an objectively explicit manner .

So the question is; Do I want my Supreme Court Justices to be swayed (by living vicariously) by what one did or experienced when they are trying to interpret the law? Should they feel empathy for a wealthy man in a tax case because his problems were rooted in issues with the death of a child? Should they feel empathy for a Hispanic in a search and seizure case because he grew up in a barrio? Should they feel empathy for a woman in a eminent domain case because her husband beat her routinely? Hell no! Have we forgotten about justice being blind? Why not just have a popularity vote on each case and be done with it. Empathy has no place in judicial matter, especially in the highest of courts.

Posted by: mmourges | May 29, 2009 3:12 PM | Report abuse

"Empathy" is bias. If we wanted biased justice, we would make biased laws then appoint judges to apply the law as written. Sometimes we do that, sometimes we don't. When we make unbiased laws - legitimately through our elected representatives - that's how we expect them to be applied in court, in an unbiased manner.

It is not a legitimate judicial activity to bias the laws from the bench based on who she feels sorry for - or who she feels an empathic connection with.

Setting up our government that way is the path to tribalism and corruption. I don't think the Democrats will make much headway leading us down that path since those are extremely un-American values, but I can see that that is where they would like to lead us.

Posted by: ZZim | May 29, 2009 3:12 PM | Report abuse

"Empathy" is bias


Wrong. Empathy for one group and not for another would be bias, and that is exactly what Gerson wants.

To administer the law without regard for its effects on peoples' lives would reflect a psychopathic degree of detachment.

Posted by: chrisfox8 | May 29, 2009 3:15 PM | Report abuse

The GOP has suffered such a tremendous loss of strength, both geographically and demographically, that it has done the USA the service of revising that aphorism coined by Reagan Sec Agriculture James Watt.

Old version: There are two kinds of people in this country--Americans and liberals.

New version: There are two basic ways of thinking in this country: the GOP way, and the American way.

Posted by: bfieldk | May 29, 2009 3:24 PM | Report abuse

The GOP has suffered such a tremendous loss of strength, both geographically and demographically, that it has done the USA the service of revising that aphorism coined by Reagan Sec Agriculture James Watt.


Heh heh heh Mr. Lightbulbhead

After he had to resign as Interior Sec'y, Watt did a brief stint on CNN as a commentator .. that didn't last long because he was prone to saying some seriously psychotic things on camera.

Then he went to the 700 Club, waving his hands in the air. Set some sort of record as the most irresponsible choice for a position of responsibility in government .. a record broken many times by Bush the Lesser, and blown into Low Earth Orbit by McCain's subhuman pick for VP.

Posted by: chrisfox8 | May 29, 2009 3:33 PM | Report abuse

The whole empathy debate is loaded. The conservative justices use empathy & personal bias in their rulings as well. People are people, not machines. Our experiences & perceptions influence decisions, period. This is just an extension of 'judicial activism', which means a law/decision that a conservative disagrees with.

Posted by: nameit23 | May 29, 2009 4:19 PM | Report abuse

Krautheimer is quoted:

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."

I am a little surprised that you did not contrast with Anatole France's famous quote:

The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.

Posted by: wstander | May 29, 2009 4:26 PM | Report abuse

"These conservative critics aren't really against empathy -- they're just against empathy with what they consider the wrong people."

Typical ad-hominem attack from hyper-partisan Froonkin, who is so intolerant of other views that he must demonize all those who share them.

Posted by: bobmoses | May 29, 2009 4:29 PM | Report abuse

The meaning of empathy in this context could also be the difference between measurable damages and immeasurable damages. Empathy allows you to realize that the net effects of some action could be greater than a monetary effect.

In a big picture sense, it is like the way we are always told that free markets are great and NAFTA should go further, but then we find our economy approaching 90% service jobs which get annihilated during a recession. Did we let too much manufacturing go overseas? YES we did.

Is it easy to quantify how much manufacturing we should have in our economy when supply-side economists can easily quantify the money saved by shipping a job overseas? No, it isn't easy. But who said governing was easy.

Conservatives like it easy, no empathy. The real world is more complicated. Imagining that courts should all come up with the same answer everytime is pretty silly.

Posted by: farkdawg | May 29, 2009 5:17 PM | Report abuse

I would say they're not even familiar with the meaning of the word "empathy," not really understanding its implications.

They're hardly intellectuals, for all their educational bluster they never say anything that makes another think.

But their targeted audience doesn't really want to think, they just want a mindless fix over which they can bond and feel superior to another, if only for a moment.

Not really a smart way to run and grow a political party, especially for the long term.

Posted by: thegreatpotatospamof2003 | May 29, 2009 5:58 PM | Report abuse

You're still calling Krazyhater a "leading conservative pundit." That's adorable.

Posted by: hellslittlestangel1 | May 29, 2009 8:03 PM | Report abuse

"A nation's laws are the external deposit of its moral life."
-Oliver Wendell Holmes

That's moral. Not logical. If you like pure logic, study Aristotle and mathematics. Justice is a far more human concept than mere logic. And the simple fact is that society has tended to treat people of different economic, racial and social identities differently. You can say that correct reasoning in many of these very human situations where law is administered, must include empathy, and understanding of what the claims are of plaintiff and defendant.

Of course the law applies. Ignorance of the law, and judicial precedent, obviously disqualifies a person from being a judge. But pretending to some kind of blind objectiveness just as surely disqualifies a person.

There is simply no such thing as objectivity in a human being. Anyone who thinks otherwise is hugely kidding him or herself.

Posted by: whizbang9a | May 29, 2009 9:46 PM | Report abuse

It's no great surprise that the party which supports the use of torture is the same party that thinks 'empathy' is a negative characteristic.

Posted by: kikibato | May 29, 2009 10:05 PM | Report abuse

The word Empathy rings out fine...add "better than a white man" .... well the innocence of the word is lost. Nothing disingenuous about that.

Posted by: DD163 | May 29, 2009 10:56 PM | Report abuse

Empathy was desirable for conservatives when Alito was being confirmed, and all the GOP wanted was an up or down vote.
Funny how things look from the other side of the fence...!
That being said, the GOP is already going to be in REAL trouble in 2010 and 2012 with all the ammunition they've provided since this pick was announced. Telemundo will be playing clips of Ann Coulter, Newt Gingrich, Rush Limbaugh and Tom Tancredo over, and over, and over again for the next four years. Good job walking right into Obamas trap, you fools - but please, keep it coming.

Posted by: jeffc6578 | May 30, 2009 12:15 AM | Report abuse

Besides, it's just plain funny to watch the party of the southern strategy twisting in the wind.

Posted by: whizbang9a | May 30, 2009 12:38 PM | Report abuse

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