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'Empathy': Does it belong on the Supreme Court?

Will empathy bring bias to judicial decision making?

“Empathy” is suddenly a dirty word, said Sheryl Gay Stolberg in The New York Times. The ability to put oneself in other people’s shoes is usually a positive, and it’s a quality President Obama has said he’d seek in replacing Associate Justice David Souter on the Supreme Court. But ever since Obama nominated Sonia Sotomayor, a Latina who grew up in a Bronx, N.Y., housing project, “conservatives have cast empathy as an epithet.” Empathy, said Republican Sen. Orrin Hatch, “is a code word for an activist judge,” a liberal who uses the law to remake society according to her whims and biases. Other high-ranking Republicans are vowing to find out at Sotomayor’s confirmation hearing this summer if she’ll let her “personal feelings” influence her rulings.

As well they might, said Terry Eastland in The Weekly Standard. Even though Obama and Sotomayor are now avoiding the word “empathy,” the president has made it clear what he means by it. After voting against confirming the highly qualified John Roberts as chief justice, then­–Sen. Obama explained, “We need somebody who’s got the heart, the empathy,” to “understand what it’s like to be poor or African-American or gay or disabled.” At Obama’s University of Chicago, or Sotomayor’s Princeton, said Michael Gerson in The Washington Post, students are taught that judicial impartiality “is a fraud perpetrated by the privileged.” Since the rich and privileged already operate the other levers of power, the “Supreme Court justices should favor socially unfavored groups.” Do Americans want justices whose goal is to even up the score of life, or who interpret the law without bias?

There is no judge without bias, said Edward Lazarus in Time. It’s pure “bunk” to insist that conservative justices such as Clarence Thomas and Antonin Scalia objectively interpret unambiguous legal language. What does “equal protection of the laws” mean? “Due process”? In ruling how complex, 21st-century cases match up to a Constitution written centuries ago, “justices inevitably make subjective judgments” colored by their “formative experiences,” their values, and, yes, their identification with the litigants. Take the recent Supreme Court case of a 13-year-old Arizona girl who was strip-searched at school, said Gloria Borger in CNN.com. Male conservative justices saw that as a justifiable intrusion, since they identified with the male authorities. But Ruth Bader Ginsburg disagreed, pointing out later that a girl that age is acutely self-conscious about her body. “They have never been a 13-year-old girl,” she later said of her fellow justices. If that’s empathy, we need more of it.

If you want a justice without empathy, said David Brooks in The New York Times, you’ll have to nominate a psychopath. Like all normal human beings, Supreme Court justices are “emotional intuitionists” who begin their decision-making process with models of morality, justice, and desirable outcomes already ingrained in their heads. And that’s a good thing. “People without emotions cannot make sensible decisions because they don’t know how much anything is worth.” Sotomayor’s fitness for the Supreme Court, therefore, hinges heavily on how she uses her empathy. “She will be a good justice if she can empathize with the many types of people and actions involved in a case,” weighing the law and the possible consequences of the ruling, while carefully examining her own biases. But if her empathy is limited only to people like herself, then her critics will have been right.

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