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Obama’s Nominee for the Supreme Court: The Empathy Test

May 6, 2009

Ruth Marcus in the Washington Post confronts President Obama’s stated preference for a Judge to replace David Souter on the Supreme Court who is

“someone who understands that justice isn’t about some abstract legal theory or footnote in a case book; it is also about how our laws affect the daily realities of people’s lives.” That “quality of empathy,” he said, is “an essential ingredient for arriving at just decisions and outcomes.”

In the legal world, Obama’s use of the word “empathy” is seen as a code word for making decisions about cases before the Court on the basis of which party to the dispute has been wronged or is more worthy of our compassion. To make decisions in this fashion would surely, according to critics, be destructive both to legal precedent and to the unbiased decision making process of the current Court. Worse, these Justices would be primed to engage in judicial activism unrestrained by anything other than the Justice’s own personal preference. The real problem with this analysis–and I agree with Ms. Marcus that the word “empathy” does unnecessarily open the door for Obama’s conservative critics to attack him–is twofold: (1) it mistakenly presumes that possession of empathy requires that a Justice abandon reason and (2) it presumes that those who apply a strict constructionist jurisprudence (a legal philosophy whose determining characteristic is a rigorous investigation into the intention of the authors of the constitution) leave no room for the personal political preference to enter into the decision making process. Neither of these presumptions is correct. Reasoned legal analysis can produce a judicial decision that results in a show of compassion to an aggrieved party just as often as a Justice can “dispassionately” discover that the authors of the Constitution intended its provisions to be applied in a manner politically consistent with that Justice’s own political philosophy. In addition, critics of empathetic justice fail to recognize how that quality can enhance reasoned understanding of the factual circumstances that may be determinative of a case. As Ms. Marcus points out,

Obama’s most controversial formulation of the empathy argument came in a 2007 speech to Planned Parenthood. “The issues that come before the court are not sport,” he said, disputing the umpire approach. “They’re life and death. And we need somebody who’s got . . . the empathy to recognize what it’s like to be a young, teenage mom; the empathy to understand what it’s like to be poor or African American or gay or disabled or old.”

Possessing the “empathy to recognize” should not determine the outcome of a case, but it should inform the judge’s approach. All judges are guided to some extent, consciously or unknowingly, by their life experience. The late Justice Lewis Powell, the deciding vote in Bowers v. Hardwick, the 1986 case upholding Georgia’s sodomy law, told fellow justices — and even a gay law clerk during that very term — that he had “never met a homosexual.” Would the outcome of Bowers — an outcome Powell regretted within a few months — have been different if the justice had known men and women in same-sex relationships?

When Bowers was overruled in 2003, the majority opinion by Justice Anthony Kennedy was infused with a greater understanding that anti-sodomy laws “seek to control a personal relationship.” You got the sense that Kennedy actually knew people in such relationships.

And empathy runs both ways. In 2007, when the court rejected Lilly Ledbetter’s pay discrimination lawsuit because she had waited too long to complain about her lower salary, the five-justice majority seemed moved by concern for employers unable to defend themselves against allegations of discrimination that allegedly occurred years earlier.

Justice’s blindfold is a useful metaphor for impartiality. It’s not a fixed prescription for insensitivity, or for obliviousness to the real world swirling outside the arid confines of the courthouse.

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