On Judicial Empathy

Justice David Souter's vacancy on the Supreme Court will soon reveal how perfectly imperiled we are when it comes to our understanding of law. The view of law as reason itself, made to shape human passions, is practically dead. This means that politics is not a matter of colliding interests within a framework of law, but the overpowering of one interest by another ― and another, and another, until one comes out on top. If that's the case, what could a Justice's position on the Court be, if not one who is attuned with the dominant set of values at a given time ― or, rather, one who chooses which values he believes ought to rule?

That appears to be what President Obama is aiming at as he chooses the next Supreme Court Justice. In his statement on Souter's retirement, Obama introduced the new definition of "justice" for our times: it is not simply awareness of what the law means.

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.

This, he declared, depended not so much on a judge's ability to judge, but on his ability to "connect with people." The new justice is supposed to know the emotions of Americans, and to rule on constitutional questions accordingly.

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.

This is not to say that such empathy is not essential for good government. Tere is in fact a branch of the constitutional system that is meant to do precisely that ― a branch that goes far beyond mere empathy. The legislative branch seeks something much more connected and sentiment-driven: sympathy. That full connection with the people is ensured because the representative is one of them, which a judge is not ― and where sympathy falls short, the representative loses his seat. There is absolutely no reason to believe that a judge can truly empathize with the whole of the American public, precisely because there are too many interests. The only thing Mr. Obama could possibly mean here is that the right judge empathizes with the specific interest that he believes is worthy of such attention. The rest are simply wrong.

What is worse, the kinds of Supreme Court justices that Mr. Obama idealizes have been quite un-empathetic on certain key issues. Consider the Justice Souter in Planned Parenthood v. Casey (1992). Overturning Roe v. Wade would be a

surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question.

He joined Justice Kennedy in emphasizing how the critical thing was the Court's own authority, and that overturning Roe would devastate the public's ability to accept its rulings. It is from that priority that those who wish to protect abortion will receive their benefit ― and will praise the Court emphatically for doing so; those who oppose it, however, or at least believe that the regulation of abortion ought to occur through the democratic process ― much less the unborn ― receive no empathy at all

Carol Platt Liebau makes this point in Real Clear Politics:

When a President emphasizes the importance of "empathy," the more proper question becomes not whether a particular judge has empathy, but rather, for whom? After all, empathizing with a woman who wants a late-term abortion necessitates a certain lack of empathy for her unborn baby. Empathy for accused criminals can feel like something very different to their victims.

In this, Mr. Obama is taking the typical "third way" approach. The clashes between left and right, as he has said on many occasions, is quite outdated and silly. Politics is not meant to deliberate about what is good for society, but to develop out of present conditions; political conflict does not occur so we can come to relatively fair and just policy solutions, but so we can move beyond those distensions altogether.

In practice, though, given the eternal nature of political life, the "third way" means that one side must yield. "Civility" is when the losers ― the conservatives, in this case ― accept defeat, and admit to the world that they have nothing to offer, nor any grounds for their objections. When it comes to the abortion issue, Mr. Obama seeks to realize what Harry Blackmun said in 1973: by constitutionalizing the abortion issue, it the dispute was "settled," and anyone who held on or insisted that it should be reconsidered was simply a loon.

And, of course, anyone who refused to accept such Court edicts is quite undeserving of empathy.

Liebau writes:

Barack Obama won the election fair and square, so there would be no grounds for objection if he were listing the criteria for a nominee to a policy-making position. But he isn't. He is selecting a jurist, and therefore is supposed to be seeking someone who will uphold the rule of law by deciding cases impartially, based only on the law and the facts before him ― and nothing else.

The lesson for the left in all of this ― which began, but what cut short, in the Bush years ― is how turning to the judiciary can backfire terribly for their own causes. I seemed quite able over the last few years to convince my left-leaning friends that the Court was not the way to the sort of "social change" they were seeking. "What about power to the people?" I asked. "What about changing hears and minds ― or perhaps even learning from opposing points of view?" And, given Bush's appointees, they were willing to accept that approach. But then Prop 8 came along, as well as a new president who is willing to appoint judges who agree with their own view ― who make the issues less of a political fight, and more a matter of historical inevitability. Very appealing for those who think exclusively in "the now," but hardly a good long-term plan.

Eventually, should a Republican president start nominating justices based primarily on their "empathy," surely even liberals will realize that it is dangerous to install a judiciary that relies on feeling, rather than reason, as the indispensable guide to judicial decision making. After all, a judge's empathy extends most predictably to parties to whom s/he relates or with whom s/he sympathizes personally or politically. As such, relying on "empathy" undermines citizens' confidence that all will be equal before the bar of justice ― and that adjudication itself will be impartial. That assurance is essential for a free people to remain free.

That is the only freedom that makes sense: one where we do not have the rule of people, but the rule of law ― cold, calculating, impartial reason, which allows for political passions to exist, but governs by ordering them into a right relation. Critics of this view will, of course, point out how hopelessly imperfect it is: so long as judges are human beings, they will inevitably side with one interest over another, and law will always be corrupted. Maybe so. But we are not coming closer to solving that problem by relying on sweet, romantic, blubbering "empathy" to prevent it. We are only making the tyranny of the majority worse.