President Obama has twice stated that he wants to nominate a Supreme Court justice with empathy - once on July 17, 2007 and again on May 1, 2009. He's taken a lot of heat for this, but I agree with him.
It is important to understand that empathy is not the same thing as sympathy. A good description of the difference between the two, and I forget where I read this but it is not original, is that if I have sympathy, it is about me, whereas if I have empathy, it is about you. With sympathy, I feel bad for you, whereas with empathy, I understand that you feel bad and recognize the importance of your perspective. Sympathy is an emotion, whereas empathy is the intellectual understanding of emotion.
On May 28, conservative New York Times columnist David Brooks defended the role of emotion in the law:
In reality, decisions are made by imperfect minds in ambiguous circumstances. It is incoherent to say that a judge should base an opinion on reason and not emotion because emotions are an inherent part of decision-making. Emotions are the processes we use to assign value to different possibilities. Emotions move us toward things and ideas that produce pleasure and away from things and ideas that produce pain.
People without emotions cannot make sensible decisions because they don’t know how much anything is worth. People without social emotions like empathy are not objective decision-makers. They are sociopaths who sometimes end up on death row.
A judge's empathy gives her a better understanding of the facts at hand. I can think of six examples of judicial deliberations that require empathy, three about rendering opinions and three regarding legal technicalities. First are cases of free speech. Two clichéd understandings of freedom and free speech are that no one has the right to falsely scream "fire" in a crowded theater and that my right to swing my fist ends where your nose begins. (Interestingly enough, I looked up both these clichés to write this post and found that they each come from the same source, former Supreme Court Justice Oliver Wendell Holmes.) The understanding of these quotes is that we are not free to endanger others, not even with our speech. To understand when speech becomes dangerous, judges need to be able to understand how that speech will be received by an audience. They need to know how hearing "FIRE" will make the crowd feel and how the crowd will then react to that feeling. This knowledge is gained by understanding the crowd's emotion. Without empathy, we have no clue that screaming FIRE will cause panic, since panic is an emotion that results in an action. My second example is judging self-defense. An empathetic judge can say yes, I understand why you felt threatened and pulled out your gun when you heard a series of rhythmic thumps in your living room at 3AM. That same judge would know that it is not okay to shoot blindly at a few small scratches in the wall, thus killing mice and sending bullets through the wall and into your neighbor's house rather than nailing a burglar. Empathy yields an understanding of the difference between feeling threatened and being paranoid, an important difference in judging a self-defense defense. Third, many laws deal with motive and intent (which are understood through empathy). If your intentions are pure, "Good Samaritan" laws may absolve you of guilt. On the flipside, if you kill a man with sinister motives, you’ll be charged with murder one instead of murder two or manslaughter.
My fourth example moves away from opinions and towards process: when can you compel a witness to testify? It is through empathy that a judge determines whether or not an old or potentially crazy witness is competent enough to testify or allows a rape victim to avoid the stand with the defendant in the room. Fifth, there are times when laws conflict with each other. Going off Brooks' words about empathy teaching us value, empathy can help a justice determine which law is more important given the particular facts of a case (assuming that neither law conflicts with a higher law, like the Constitution). Six, it is the Court's job to interpret laws, a job that often requires an examination of the legislative record. In trying to determine what a statute means, judges and justices will look at what the legislators who wrote that law said during debate. To understand what a person says, you can't always just look at their words; you must also look at their tone. You have to read between the lines and understand their emotional overtones. Clearly, Sessions' complaints aside, empathy is as much judicial as it is political. To those who argue that any of these six decisions could be made in a cool and calculating way without emotion, I return to the Brooks column:
The mind tries on different solutions to see if they fit. Ideas and insights bubble up from some hidden layer of intuitions and heuristics. Sometimes you feel yourself getting closer to a conclusion, and sometimes you feel yourself getting farther away. The emotions serve as guidance signals, like from a GPS, as you feel your way toward a solution. Then — often while you’re in the shower or after a night’s sleep — the answer comes to you. You experience a fantastic rush of pleasure that feels like a million tiny magnets suddenly clicking into alignment.
Now your conclusion is articulate in your consciousness. You can edit it or reject it. You can go out and find precedents and principles to buttress it. But the way you get there was not a cool, rational process. It was complex, unconscious and emotional.
On Wise Latinas
While "empathy" is an Obama controversy, the "Wise Latina" quote comes from Sotomayor herself: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life." Sotomayor has since backed off the quote, explaining that she was just trying to inspire women and minorities but phrased it very "badly."
That’s too bad. I’ve always felt that the only problem with Sotomayor's quote was her use of the phrase "more often than not," but that if one takes away that line, it's a perfectly reasonable statement to make. There are some cases in which a wise Latina will offer the best ruling. There are also cases where a wise white male will offer the best ruling. The same is true for a Muslim orphan or a Kenyan farmer. We learn more from our own experiences than we do by listening to others recount theirs, and are best suited to make decisions in cases dealing with similar experiences. The more experiences we have, the sounder our decisions will be.
While Sotomayor has backed off the "wise Latina" wording, she has at least stood by her belief that our experiences influence our understanding of the world. This view appalls Senator Sessions, whose questions to Judge Sotomayor make it clear that he believes it is entirely possible to be completely impartial. I disagree; it is impossible for a person to set aside their worldview. If we could achieve full impartiality, then we’d only need one justice, not nine – or at the very least, there would be a lot fewer 5-4 decisions. As Senator Sheldon Whitehouse (D-RI) (pictured) said in his opening statement, “I particularly reject the analogy of a judge to an ‘umpire’ who merely calls ‘balls and strikes.’ If judging were that mechanical, we wouldn't need nine Supreme Court Justices. The task of an appellate judge, particularly on a court of final appeal, is often to define the strike zone.”
The fact is our experiences influence our worldviews. Different perspectives yield different understandings of the facts. Sessions claims this is a matter of choice: “When I present evidence, I expect the judge to hear and see all the evidence that gets presented. How is it appropriate for a judge ever to say that they will choose to see some facts and not others?” If it really were a matter of picking and choosing, he would be absolutely right, but it is not. The facts we fail to notice and the facts that our minds are naturally drawn to are a matter of worldview and experience, not of rational choice. And indeed, as Sotomayor replied, “Our life experiences do permit us to see some facts and understand them more easily than others.”
On the subject of objectivity, I would quote filmmaker Marguerite Duras: “Journalism without a moral position is impossible. Every journalist is a moralist. It's absolutely unavoidable. A journalist is someone who looks at the world and the way it works, someone who takes a close look at things every day and reports what she sees, someone who represents the world, the event, for others.” What is true of journalists is true of all people. As ASU instructor and Arizona Daily Star columnist Sarah Gassen wrote, “Humans don't receive information like computers, absorbing data with no response.” That category—humans—does not exclude judges.
On Jeff Sessions
But hey, maybe these silly critiques aren't such a bad thing - they are helping to expose Judiciary Ranking Member Jeff Sessions (R-AL) for the racist and buffoon that he is. For the record-and this is the definition of irony-the man injecting race time and time again into Sotmayor’s confirmation hearing was once rejected for his own federal judgeship by the very same committee he now presides over because his own party considered him too racist for the job. Watch this clip about his behavior during the hearing from Tuesday night's Rachel Maddow Show and then read this article from The New Republic about Sessions' racist past, which includes calling a white lawyer a “disgrace to his race” for taking on black clients.
(Note: if you're reading the imported version of this post on Facebook instead of the original on my blog, you may not be able to see the video. Link to it here.)
Picture Credit One. Picture Credit Two.