A president comes to the microphone and introduces his nominee to the Supreme Court to the world. The president says, “I have followed this [nominee’s] career for some time, and he has excelled in everything that he has attempted. He is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor. He’s also a fiercely independent thinker with an excellent legal mind, who believes passionately in equal opportunity for all Americans. He will approach the cases that come before the Court with a commitment to deciding them fairly, as the facts and the law require.” Obviously this was said by Pres. Barack H. Obama this past week about Judge Sonia Sotomayor and I’ve just changed the gender of the pronouns, right? Wrong. The year was 1991. The president was George H. W. Bush (R) and the nominee was (now) Justice Clarence Thomas!
About Thomas, Sen. Kit Bond (R-MO), emphasized his compassion and understanding of the impact of the Supreme Court on the lives of ordinary Americans in arguing for his confirmation.
Similar remarks by conservatives can be found with regard to other Supreme Court nominees (and sitting justices) they admire, including Justices Scalia, and Alito. So, why the attack on empathy now?
The lack of empathy in a person is a defining characteristic of sociopathy–the mental illness where a person “has no conscience” because is unable to look at the world except from the view of “what’s in it for me.” Unlike other psychoses and neuroses, sociopathy has no outward signs of odd behavior. That’s why sociopathic mass murderers can live next door to people without them ever suspecting the “quiet young man” of the capacity for incredible evil. Judges are not “brains in glass jars,” nor are they robots–and we don’t want them to be. Show me a judge without empathy and I’ll show you a monster who should be in a padded room, not in robes on a bench.
Empathy is not being ruled by emotion without regard to the letter of the law. Nor is it weak pity or sympathy. Rather, empathy is the ability to transcend one’s own viewpoint to see the perspective of others. It is the mental ability to “walk a mile in another’s moccasins” as the ancient Native American saying puts it. It is at the root of morality.
Recall our discussion on moral discernment. There is a role, along with reasoning, for the passions, and the virtues. In his wonderful book, Virtuous Passions, my friend, Father Simon Harak, S.J. (a Palestinian Christian, Jesuit priest, pacifist, theologian, peace activist, and so much more) argues against the pop-psychology view that our emotions are neither good nor bad, only our actions are moral or immoral. While there is some truth in the idea that if I do not act on my bad emotions, I am better than otherwise, that is not the whole story. After all, if you recited to me the testimony of a child being abused and the emotion I felt was joy, or delight, you would (rightly) think that something is wrong with me morally–even if I never came CLOSE to harming a child. (This is why modern folk should not be so quick to dismiss old-fashioned advice about watching the material we read or watch. We need not take a Victorian prudish attitude toward all things erotic to be concerned about pornography, for instance, or the “torture porn” of many horror movies and TV shows like 24, and The Unit.)
Morality is more than emotion or passion. It includes learning how to reason morally, it includes attention to one’s loyalties and interests, one’s deepest convictions, and one’s perception of the situation, too. But the passions, especially empathy, are the root of morality.
What does that have to do with judges? Well, as I have said before, legal reasoning has much in common with moral reasoning. [Aside: I hate it when well meaning liberals and progressives cite the old chestnut that “you can’t legislate morality.” Of course you can. In fact, MOST laws uphold some view of morality. A law against murder or torture or rape or robbery is “legislated morality.” To say one cannot legislate morality is sheer idiocy. And it isn’t even original with liberals or progressives. The saying was first touted by conservative racists against efforts to end segregation–which they called “legislating morality.” Now, it is true, that morality has more than legal dimensions and that it is neither wise nor practical to try to turn every moral principle into a law. That way lies totalitarianism. Clashes over what should or should not be legislated, are either clashes between different moral conclusions (e.g., the abortion debate) or are clashes about the wisdom of outlawing some morally problematic behaviors (e.g., clashes over gambling statutes, debates over which drugs should be banned, etc.). Even debates over the amount and type of taxation are debates with MORAL dimensions.] In The Audacity of Hope, then Senator Barack Obama specifically named empathy as the center of his own moral system and makes the claim that it is at the center of any democratic form of government–certainly of the American experiment. One cannot understand the struggle of the Abolitionists against slavery, for instance, without seeing that it was their empathy–their ability to put themselves into the situation of others–that drove them. The same is true for the struggle of the suffragists and other women’s rights movements, the struggle against child labor, and for unions and for worker safety, the struggle against segregation, etc. Our great failures as a society (e.g., imprisoning Japanese Americans during WWII “on reason of race”), including our legal justifications for those failings (e.g., The Korematsu decision or Plessy v. Ferguson) are failures of empathy as much as they are failures of reasoning. As a presidential candidate, Obama cited a lack of empathy as one of the reasons he voted against the confirmation of Chief Justice Roberts, saying that 95% of the time the law is clear and the case is clear–and conservatives, liberals, centrists, etc. all reach the same conclusion. But in that 5%, judges need to be able to get beyond the words on the page to their impact on people’s lives. (Whether Obama is correct in his assessment of Chief Justice Roberts is a separate question from his point about empathy.)
I am not arguing that Judge Sotomayor should not be questioned deeply. I don’t know, for instance, that the claim that she is emathetic is true. For instance, I have not seen much evidence that George H.W. Bush was right in claiming that Clarence Thomas was a man of great empathy. I don’t think his judicial record reflects that at all. But that’s different than claiming that empathy is something BAD in judges. It is something good that we should WANT in judges. I have no desire to replace human judges with Artificial Intelligence computers just programmed with exhaustive knowledge of the law.
An editorial in the conservative National Review claims that “empathy” is just a “liberal code word” for “judicial activism.” (They said this even before they knew whom Obama planned to pick.) Well, first of all, there is evidence that conservative judges are more likely to be activists who “legislate from the bench” than liberal or centrist judges do. But this also misses the number of times that conservatives have praised empathy and related virtues like compassion. A good judge, especially an appellate judge or Supreme Court justice, needs MORE than empathy, but not less.
Nor does empathy mean agreement with the other whose perspective one seeks to understand. If the kind of terrorism that is spawned by warped versions of Islam is ever to be stopped (apart from debates on what tools should be used to stop it), we in the West MUST seek to understand the motives that drive our foes. Nor should we be satisfied with quick and shallow summaries such as “they hate our freedoms,” or “they are religious fanatics,” etc. We have to strive to see the world as they see it, to see Western (especially U.S.) actions from their perspective–even if we NEVER share that perspective. Similarly, a judge may be very empathetic with a convicted criminal and still think that justice and the public safety demand a very harsh sentence. A judge may be empathetic with an overworked public defender and still demand that she be ready for trial at 9 a.m. the next day or very empathetic with a prosecutor whose case just went south not because of police misconduct and still demand that the accused be set free–even if she suspects the accused is actually guilty–because that’s the law. Empathy is not automatic agreement.
When I was a teen, my Sunday School teacher was a crusty old man who happened to be judge in the Duval County Florida Circuit (i.e, felony) court. He and I often disagreed since he was a Republican and I was, even then, a liberal Democrat in my sympathies. He was known as a tough trial judge and I can attest to that since I later worked in his court as a bailiff while trying to discern whether my own path should be toward theology or law. His reputation did NOT include showing much mercy or compassion from the bench, but this part of his reputation I would dispute. I saw this judge show compassion and mercy for all sides from the bench–while running a very strict courtroom. While trying to discern my future path I asked him what quality a judge most needed. He didn’t hesitate: “The same thing a minister most needs, Michael, empathy–a feel for the human condition both in the large picture and in individual cases. The most brilliant legal mind without empathy would be a horror.”
In fact, we know from history that this is the case. For the Nazi judges who were tried after WWII at Nuremberg were precisely that: brilliant legal minds who lacked sufficient empathy to understand the horror of what they were doing to Jews, Gypsies (Rom), communists, gays–and all dissenters from the “orthodoxy” of the Third Reich.
Judge Sonia Sotomayor must be questioned deeply about all sorts of matters in her confirmation hearings–and I could wish that the public had more input. I am not defending her nor trying to preclude vigorous hearings–that’s a constitutional DUTY of the U. S. Senate. But put me down in praise of empathy as a REQUIREMENT for all judges.
And today, I will lift a prayer for the cultivation of empathy by EVERYONE in our society–even by empathy’s current critics.