I have thus far resisted addressing the criticism directed by some conservatives at President Obama's stated goal of selecting a Supreme Court nominee who, among other things, has a strong sense of empathy for his or her fellow human beings and the difficult circumstances in which they sometimes find themselves. I have resisted mostly because the critique is laughably implausible. Obama never said that he thought empathy was the only characteristic necessary for judging, nor did he say anything like what the critics attribute to him: I want judges who will ignore the law and vote based on their own subjective preferences for some people and interests over others. Instead, Obama made a point that is and has been a commonplace for over a century: In the sorts of hard cases that reach the Supreme Court, there are usually legitimate legal arguments for a variety of results; in following the law as they best understand it in such cases, judges will invariably be influenced to some extent by their values and life experience; and therefore, in addition to intelligence, expertise in the law, and sound judgment, a judge ought to have empathy so that he or she can put himself or herself in the shoes of the litigants who come before him or her.
Thus far, liberals and moderates who have come to the defense of Obama's quest for empathy have mostly emphasized the point just made--that conservatives have badly misinterpreted what the President meant. But I think the counter-critique can go further. Everybody who is not utterly autistic or sociopathic feels some empathy. It is almost impossible to interact with others--and have a sense of what they are saying and doing--without at least a minimal capacity to imagine how the world looks through their eyes, to understand their actions as those of other sentient beings rather than as those of unthinking, unfeeling robots. The question, therefore, is not simply one of the capacity for empathy but whether a prospective judge feels empathy selectively, and if so, who gets selected for empathy.
In an important sense, liberals and conservatives both engage in selective empathy. Consider criminal procedure cases. More so than conservatives, liberals empathize with people charged with crimes. In some instances, that is because the liberals are worried about the possibility that innocent people will be wrongly punished; in other instances, liberals empathize with defendants even though they are guilty, on the ground that they are entitled to be treated with dignity. Criminal procedure conservatives have less empathy for those charged with crimes. However, conservatives do not simply want to enforce the letter of the law against the defendant out of a sense that the law is the law. Quite the opposite.
In criminal procedure debates, conservatives often accuse liberal judges of letting criminals off on "technicalities." But that is exactly the opposite of the point some conservatives make against Obama. In the criminal procedure context, the conservatives are saying that notwithstanding some technical requirement of the law--e.g., that there be a warrant to execute a search--the result they favor--criminal conviction--ought to occur. Why?
Partly it's because of the conservatives' lack of empathy for criminal defendants, but it's also partly because conservatives are moved by their own empathy for crime victims. This explains why judicial opinions by conservatives denying criminal defendants' rights often begin with a description of the grisly crime and the victim's suffering, even when those details of the crime are irrelevant to the legal issue, and even when the amount or nature of the suffering does not go to the culpability of the defendant. Similarly, victim impact statements--upheld by a conservative Supreme Court majority in Payne v. Tennessee--are based on the idea that focusing on the technical legal question of the defendant's culpability risks paying insufficient attention to the interests of victims.
To be clear, I am not criticizing the conservative Justices for feeling empathy for crime victims. That is wholly natural and appropriate. I am criticizing those politicians and pundits who think that "empathy" is simply code for "liberal" or "judicial activist."
So, political posturing aside, what is the proper role of empathy in judging? I think Tony Kronman's book, The Lost Lawyer, though problematic in some other respects, got it about right when it described the soul of legal wisdom--which can, for these purposes, be equated with judicial wisdom--as the ability to see an issue from multiple perspectives. The point here is not simply that one can articulate arguments for different sides; rather, Kronman says, and I agree, that a wise counselor or judge can actually put herself in the shoes of those whose arguments she is trying on. That is, in a word, empathy--and what one wants in a judge is both a large and a wide capacity for it. So, in a case like Payne, it's not enough to feel the pain of victims or of defendants. A wise judge or Justice must be able to feel both perspectives as she makes the most sense she can of the law. If that's a code word for anything, it's "justice."
Posted by Mike Dorf