Judicial Empathy Is Not Anarchy

By TChris, Section Supreme Court
Posted on Mon May 18, 2009 at 07:21:58 AM EST
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Joel Hilliker's objection to judicial empathy is apocalyptic:

The court becomes a charity organization rather than a dispenser of justice. The rule of law is destroyed. The rules are written in sand. We are left at the mercy of the whims of the judge.

Anarchy! The end of civilization! Snakes on the plane!

Empathy, Hilliker argues, is inconsistent with impartiality, and judicial impartiality is commanded by the Bible, the only law book that counts. Sen. Orrin Hatch embraces the argument that there is no place for empathy in the heart of an impartial judge while Andrea Lafferty warns that President Barack Hussein Obama isn't looking for ordinary empathy but for "liberal" empathy "for the poor, minorities and gays." In an effort "to build the conservative movement and identify the troops," conservatives are branding empathy as the force that empowers their once-reliable nemesis, the activist judge. [more ...]

Never mind that Hilliker ignores passages from the Bible that can be understood to endorse empathy. Obama explained in 2005 that judges should be guided by the law in ordinary cases where "the law" can be readily discerned and logically applied.

But "what matters on the Supreme Court is those 5 percent of cases that are truly difficult," when "legal process alone" will not suffice, Obama added. "That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy," he said. "In those difficult cases, the critical ingredient is supplied by what is in the judge's heart."

Appellate opinions written by conservative judges characteristically show great empathy for beleaguered employers who seek protection from overly sympathetic juries in discrimination cases, for unfairly burdened businesses confounded by environmental regulations and harassed by the threat of punitive damages, for police officers and prison guards. Consumers, employees, criminal defendants, environmentalists, victims of corporate greed and governmental abuse: not so much empathy for them. We know what is in the heart of conservative judges, and it isn't a veneration of impartiality.

Empathy -- for the little guy, for the powerless, for the meek and mute and broken members of society who aren't noticed by conservative judges, who can't afford teams of lawyers to plead their cases -- empathy allows their voices to be heard: voices of the ordinary and common, voices of the frightened and dispossessed, voices that deserve the attention of Supreme Court Justices.

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Judicial Empathy Is Not Anarchy | 21 comments (21 topical)

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Brilliantly stated, TChris (5.00 / 1) (#1)
by gyrfalcon on Mon May 18, 2009 at 07:33:09 AM EST

Particularly this, "We know what is in the heart of conservative judges, and it isn't a veneration of impartiality."

Empathy is a wonderful - and sometimes (5.00 / 1) (#4)
by Anne on Mon May 18, 2009 at 09:38:35 AM EST

paralyzing - attribute, and I have no doubt that it comes into play in judicial decisions at all levels, and more often than we know, for the benefit of those we might not consider "downtrodden," as TChris has pointed out (I think this may be the first place I have seen the concept of empathy applied to conservative/corporate interests - I hope this is picked up and highlighted for all to consider).

That being said, and after the events of the last week, I am not all that certain that the right has much to fear from an Obama nominee. He's still talking about compromise and areas of agreement on abortion, he keeps invoking the Bush doctrine on matters of national security; I just don't see him making any bold moves to the left with this pick.

Makes me wonder if Ginsburg and Stevens are watching to see which way Obama goes on this before they willingly give up their reliably liberal seats.

Empathy destroying the rule of law? (5.00 / 1) (#5)
by kdog on Mon May 18, 2009 at 09:41:23 AM EST

Is that a joke? If you ask me the law is doing a fine job of destroying the rule of law all by itself...for no other reason than there are too many laws and it is impossible for people to live free without breaking them...and breaking them often.

I'd like the rule of law to be worthy of respect as much as the next guy, but it just ain't worthy, and it sure as hell ain't because there is too much empathy in the courtroom...in fact there is far too little of it.

Gee, I don't know, Kdog (5.00 / 2) (#13)
by shoephone on Mon May 18, 2009 at 11:46:14 AM EST

I don't have too much problem living my life and still not breaking the law in the process.

Must be something about this northwest air.


: You're weird shoephone...:) (5.00 / 1) (#14)
by kdog on Mon May 18, 2009 at 12:13:29 PM EST

Everybody I know breaks at least one everyday of the week...what's the speed limit out in the great northwest?

Too many laws? (5.00 / 1) (#20)
by cal1942 on Tue May 19, 2009 at 01:25:48 AM EST

It's not a matter of quantity but a matter of quality.

When the last of Glass-Steagall was bumped off in 1999 it blew open a door already ajar for the type of financial shenanigans that helped put us in the fix we're in. So you start to eliminate laws and regulations so that people can be FREE and all kinds of really really bad stuff WILL happen. Too few laws and the rich and well connected will do what they've always done in the absense of law -- destroy everyone and everything below them.


: Coulda fooled me... (none / 0) (#21)
by kdog on Tue May 19, 2009 at 08:44:58 AM EST

here I am thinking the whole point of government and law is to protect wealth and the wealthy from the unwashed masses. Preserve the natural order of haves and have nots. I hear ya though, there are some that supposedly protect the little guy, though nothing a high-priced lawyer and some powerful connections can't get around:)
I agree about quality over quantity...we've got too many laws of poor quality.

Empathy Is Considered By Most (5.00 / 1) (#7)
by bob h on Mon May 18, 2009 at 10:09:19 AM EST

people to be the finest human quality. Those to whom it is a pejorative term seem also to be those who support sadistic and depraved treatment of prisoners. This is a kind of human degeneracy.

: not quite (none / 0) (#8)
by wystler on Mon May 18, 2009 at 10:34:28 AM EST

used in this context by folk like Hilliker & Lafferty, it's pure dog whistle
the same dog whistle they used when they spoke of welfare queens
the same dog whistle they used when they spoke of evil-doers
they're refering to empathy (for those other people who want to take your job, your house, your money, your daughter)
it's not a very accurate portrayal, but it attempts to wedge a margin of those who back our side's agenda

Empathy is moral imagination (5.00 / 3) (#9)
by esmense on Mon May 18, 2009 at 10:35:31 AM EST

It is the ability to fully imagine the impact and consequences actions (whether our actions or those of someone else) will have on and for others. To lack empathy is to be a sociopath.

Given the recent, surprisingly widespread, condemnation of empathy by members of the elite, along with our nation's embrace of torture, our neglect of our most basic human responsibilities, as members of the broader community, toward the young, the elderly, the ill and vulnerable, our abandonment of basic notions of justice, our sickening incarceration rate and the escalating cruelty of our justice and penal system, the transformation, (and celebration) of our economy into a confidence game, the devolving of the relationship between capital and labor, financial players and consumers, into an endless series of cheats and scams, etc., it appears that we aren't simply becoming, but ARE a nation of sociopaths.

When the Right objects to "empathy" they are objecting to upsetting the amoral, sociopathic environment from which they have so obscenely profited.

Oh, C'mon..... (5.00 / 1) (#10)
by NYShooter on Mon May 18, 2009 at 10:38:43 AM EST

This would be comical if it wasn't so tragic. The Left is no match for these guys. The Right is playing to the Limbaugh/Hannity mouth breathers, who would turn off their wives' dialysis machines if they caused static on the radio while they were on the air.

Sym........pathy
Em.........pathy

Get it? Sounds pretty much the same, therefore it must be the same. Not much of a leap to judges, with tears streaming down their cheeks, handing down (apologetically) parole, or time served for child molesters and/or rapists.

Have we forgotten already; "Inheritance tax," good, yeay. "Death tax," bad, boo.

Obama Won't Name Anyone Left Of Kennedy (none / 0) (#2)
by tokin librul on Mon May 18, 2009 at 08:39:44 AM EST

to the SCROTUS.

Or, perhaps I should say: No nominee left of Meese-clone Anthony Kennedy will get enough support to win the Seat.

Granholm to be at White House (none / 0) (#3)
by Capt Howdy on Mon May 18, 2009 at 09:25:06 AM EST

By BEN FELLER - 32 minutes ago

WASHINGTON (AP) -- Michigan Gov. Jennifer Granholm, one of President Barack Obama's candidates for the Supreme Court, will be at the White House on Tuesday.

An administration official says the Democratic governor is coming to the White House for an event unrelated to the Supreme Court. It is not clear whether Granholm will be meeting with Obama about the upcoming vacancy on the court.

Heh, Steele was peddling this crap yesterday (none / 0) (#6)
by nycstray on Mon May 18, 2009 at 09:49:01 AM EST

Andrea Lafferty warns that President Barack Hussein Obama isn't looking for ordinary empathy but for "liberal" empathy "for the poor, minorities and gays."

Empathy, it's a bad thing!!

{head meets desk}

Lack of empathy... (5.00 / 3) (#11)
by sj on Mon May 18, 2009 at 10:57:14 AM EST

... is one of the characteristics of a sociopath.


: Forgot about that one (none / 0) (#12)
by nycstray on Mon May 18, 2009 at 11:07:04 AM EST

{waits for Cheney to jump on the "anti-empathy bandwagon"}

Have to assume (none / 0) (#19)
by cal1942 on Tue May 19, 2009 at 01:02:07 AM EST

that since the writer singled out 'liberal empathy for the poor, minorities and gays' that conservative empathy for the rich and priviliged is OK.

Apparently the writer is unaware of the definition of the word empathy. If one has empathy it's just that, the ability to put oneself in another's shoes. There really can't be either a liberal or a conservative empathy. Just empathy.


My old paperback Webster's has it as: (none / 0) (#15)
by BobTinKY on Mon May 18, 2009 at 12:33:43 PM EST

"intellectual identification of oneself with another."

Sounds like more socialism to me.

: sarcasm, right? (none / 0) (#17)
by of1000Kings on Mon May 18, 2009 at 02:58:47 PM EST

hard to tell sometimes on a message board
sounds like Christianity to me, as espoused by the Man Jesus Christ himself...
but f JC...we only live by the christian ideals that benefit us individually, or those like us (at the extreme, mostly we just care about ourselves, though)...
Christian nation...lol...we may be more a nation of sociopaths than we are a nation of christians at this point...I laugh whenever I hear that term...

I can't wait until (none / 0) (#16)
by WS on Mon May 18, 2009 at 02:20:55 PM EST

the liberals take over the court. Kennedy and Scalia are in their 70's, and I hope one of them longs for the tranquility of retirement.

: Scalia will not retire as long as he breathes! (5.00 / 2) (#18)
by DeborahNC on Tue May 19, 2009 at 12:33:21 AM EST

He likes the power that his position confers far too much to relinquish it early.