Legal News

The Law Blog Emotion of the Day: Empathy

By Ashby Jones

To paraphrase Salt-n-Pepa (pictured), let’s talk about em-pa-thy. Namely: does President Obama have a problem with it?

He might, reports Lawrence Hurley of the Los Angeles Daily Journal. The word too makes headlines today at both Slate and the Washington Post.

Here’s the deal: When Justice Souter announced his retirement earlier this month Obama, in one of the only statements he’s made about Souter’s potential replacement, reiterated his campaign line that he’s looking for “that quality of empathy, of understanding and identifying with people’s opes and struggles.”

Hurley reports that for conservatives, Obama’s words “constituted a code, which once deciphered signaled to them that he wants to appoint a liberal activist judge who will make policy from the bench.” The single word — empathy — is serving as a point around which folks on the right have been able to rally. Curt Levey of conservative legal group Committee for Justice, told Hurley that empathy “means favoring certain groups or people” in court, he said, which, at worst, “means using the ruling to show empathy to make policy.”

Part of the issue, at least from where Obama sits, is that the word is being applied to different contexts — and unifying groups whose agendas might not otherwise dovetail. Social conservatives, for example, seize on hot-button issues like gay marriage and abortion. But business groups feel it also suggests that an Obama justice would be more likely to side with plaintiffs rather than corporate America.

Republican National Committee chairman Michael Steele lampooned the idea late last week in a radio show. Exclaimed Steele: “Crazy nonsense empathetic! I’ll give you empathy. Empathize right on your behind. Craziness!”

But over at Slate, Dahlia Lithwick thinks Steele and others have overplayed the issue Writes Lithwick:

Empathy in a judge does not mean stopping midtrial to tenderly clutch the defendant to your heart and weep. It doesn’t mean reflexively giving one class of people an advantage over another because their lives are sad or difficult. When the president talks about empathy, he talks not of legal outcomes but of an intellectual and ethical process: the ability to think about the law from more than one perspective. . . . Empathy means being impartial toward all litigants without being blind to the consequences of your decisions. You can send up such concerns as gooey judicial sentimentalism, unmoored from any fixed legal principle. Or you can admit that judging requires acts of judgment beyond the mechanical application of law to facts and that it’s best for judges to know when the mechanical act of deciding cases gives way to ideology and personal preference.

LBers, any thoughts? We’ll tell you ours. Frankly, we can see both sides of this. On the one hand, we suppose we’d prefer all justices (and judges, for that matter) to possess more than a modicum of empathy, perspective, of an ability to understand their own biases. On the other, we can sympathize with those who say that the first requirement for a judge should be to apply the law (whatever that means), and if Obama is going to emphasize empathy, he might do so in a fuller context or at least side-by-side other qualities he’s looking for in the next justice.

Full post as published by Law Blog - WSJ.com on May 13, 2009 (boomark / email).