A Case for Empathy

"Crazy nonsense empathetic! I'll give you empathy. Empathize right on your behind. Craziness!" (GOP chair Michael Steele, May 8, 2009)

Barack Obama took a lot of heat from conservatives and Republicans when he noted that one characteristic for a Supreme Court nominee would be empathy. Here is the full quote:

Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as President. So I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.

In a matter of minutes, and in the days that have passed since, those who expect to be disappointed by Obama's eventual selection have argued that "empathy" is a code word for "judicial activism" or "legislating from the bench." Maybe so.

But before we get to that, we want to pose this question: What's wrong with empathy?

Some might argue that empathy is a fine quality for citizens, but it has no place in interpretation of the law. That seems to us to be a dubious distinction on its face, but nonetheless, it is worthy of being addressed.

Among the alarmists were the folks at Freedom Works, who had this to say: "What Obama is saying here is that the rule of law should be secondary in judicial reasoning to a judge’s own personal feelings. It is nothing short of a recipe for a breakdown of our legal system, and the death of an expectation by participants in court proceedings that they will be treated fairly, particularly if they are not highly sympathetic."

But it is important to examine this claim. There is an important shift in language at work: the blogger at Freedom Works substituted "sympathy" for Obama's word, which was "empathy." Same thing? Not at all.

Sympathy centers on internalizing another's situation, while empathy is concerned with being cognizant of another's situation and meaningfully attentive to it. Sympathy is closer to "pity" than is empathy, which involves being able to put oneself in another's shoes, so to speak. When Bill Clinton said that he felt our pain, he was expressing sympathy. That may or may not be important, but it's not the same as empathy. If he wanted to express empathy, he would have said that he understood our pain.

That sort of rationality in thought is perfectly appropriate in judicial conduct. In fact, we would argue that it is a responsibility, particularly of federal judges, to be empathetic. The Framers set up a system where members of the judicial branch would be isolated from public pressures, in part because they understood, as James Madison articulated in Federalist #10, that democracy is more than honoring the will of the majority; protecting minority rights is also essential.

The executive and judicial branches, with their members selected (directly or indirectly) by the people at regularly scheduled intervals, will ostensibly work for the majority -- at least the majority of their own constituents. It is up to the judicial branch to be empathetic to those with less power. Racial and ethnic minorities, women, LGBT folks and the poor are, currently and historically, groups whose identifiers have less access to power with respect to their flip-sides (men, Whites, etc.). When there has been meaningful change with respect to extending rights to members of disadvantaged groups, it has often been the courts leading the way (think Brown v. Board of Education, Lawrence v. Texas), and that has angered supporters of the status quo.

But that's precisely what is supposed to happen. If the status quo always held, there would never be progress, and only half of Madison's conceptualization of democracy would ever be fulfilled. The majority would always win, and minority rights could easily be ignored. Only an independent judiciary or a tremendously brave (stupid?) group of lawmakers would push against public opinion to stand up for the rights of minorities. When they have done so, they have often had judicial cover. Conservatives hated the Brown decision (though few of them are brave enough to say so now), and they hated the Lawrence decision (and most are very happy to tell you so). But Congress passed civil rights legislation in the mid-1960s, and state legislatures are now legalizing gay marriage.

Of Obama's statement, Sean Hannity said that Democrats “want the courts to take over and engage in social engineering," and Washington Times columnist Amanda Carpenter told CNN's Howard Kurtz that "[e]mpathy [is] an emotive term [and that] Barack Obama is calling for a judge who will take their [sic] emotions into account when making a judicial decision."

The notion that judges do not or should not take emotion or their own political preferences into account when making decisions is not credible. All humans have bias, and while we can strive for objectivity, that requires a recognition and conscious determination to be attentive to our biases in order to be sure that they are not the driving force in our behavior.

Maybe "empathy" is a code word. So what? Obama is progressive, and he is going to pick a progressive jurist. Of course conservatives won't like it -- they won't like it any more than progressives liked it when President Bush selected judges who would work to reinforce the status quo. That's the way it works. That's politics. And there is plenty of hypocrisy to go around as Republicans gear up to obstruct the nomination in the same way that they complained Democrats did during Bush's presidency, while Democrats are crying about the obstruction even though they used the same tactics for the past eight years.

But while the partisan hacks are staking out their territory on both sides, intellectuals are measuring and considering the President's words more carefully and thoughtfully -- and not just progressives. In the Catholic weekly publication America this morning, Douglas Kmiec writes the following: "No one should win or lose in Court because they are rich or poor or black or white. Yet to be evenhanded is not the same as being uncaringly formalistic or concerned only with systematic consequences. Real litigants stand before the Court. . . . Empathy has a wider, more open-minded nature, asking how law interrelates with the larger culture."

We may fantasize about how law is neutral, but of course it is not. It was created by humans (with biases) in the context of a system that was set up by humans (with biases), and it is interpreted by judges who are humans (with biases). Those biases should be acknowledged by jurists, critics, and citizens alike, but to argue that "judicial restraint" is value neutral while "judicial activism" is value laden is akin to arguing that standing by watching a child get hit by a moving car when one could have easily pulled him or her out of the way is a neutral act.

Because our judiciary is designed to protect minority interests, it requires members who possess empathy, which should not be confused with sympathy. Conflation of these concepts is either intellectually deficient or a blatant attempt to confuse the public as to the proper role of the judiciary in a democracy.

To be clear: the "proper role," as we see it, is not to frustrate popular will at every turn. Madison warned against such "minority factions" being tyrannical, as well. But one cannot be stationary on a moving train. Empathy is a powerful concept, and one that most organize religions preach, at least in theory. Jesus was certainly empathetic and asked his followers to be. In fact, some would argue that the very idea of God sending a son in human form was so that he could experience and teach empathy.

Whether one is a believer or not, it's not a bad model.

Update (5/12/09): Robert Burton, a former neurologist, has a wonderful piece about the scientific aspects of empathy (and the scientific-understood inability to remove personal feelings from judgment) at Salon.com.