Inevitable "Empathy"

Ilya Somin and Erwin Chemerinsky discuss the role of "empathy" in judging. In a subsequent blog post, Somin describes the chasm between them:

I fear that to some extent Chemerinsky and I are talking past each other. I don't disagree with Chemerinsky's claims that conservative justices (like liberals) sometimes base decisions on empathy and on their political ideology, and that judicial reliance on empathy cannot be completely eliminated. . . . Rather, my view is that reliance on empathy is a negative rather than a positive - whether practiced by conservative judges or liberal ones. . . . Ultimately, I think the real issue is not whether conservative and liberal judges sometimes rely on empathy (they both obviously do), but whether we should strive to reduce such reliance or increase it.


And when I was a kid, I wished I had a pony. This is the absurdity of the "anti-empathy" view. It is a wish to make humans something other than what they are. Me, I am a legal realist. I think it is much better to deal with the reality and make judgments accordingly. It is why I believe the Senate should demand concrete answers from nominees on critical legal questions. Instead, the conservative approach generally (credit to Somin for not following this approach) is to deny that it exists among "conservative" jurists.

Speaking for me only

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    Somin is a bit confused (5.00 / 1) (#1)
    by Steve M on Thu May 28, 2009 at 09:21:09 PM EST
    I give him credit for good faith, but despite all the verbiage it's like he's troubled by something that he simply can't manage to put his finger on.

    At one point in the comments someone accused him of using "empathy" in analyzing a particular case, and his response was that he wouldn't call it empathy, more like common sense.  In another comment he draws a distinction between empathy, on the one hand, and knowledge, reason, and judgment on the other.

    Right, okay, so empathy bad, common sense good.  Empathy bad, judgment good.  At this point we're just tossing around buzzwords that mean nothing because we don't have a common definition.

    The conservative agenda here is not simply to argue that empathy is bad - a losing argument if ever there was one - but rather to set up empathy and obedience to the law as supposedly opposing values.  In other words, when Obama says he wants empathy in a judge, he really means he wants a judge who will ignore the law when it's politically correct to do so.

    Conservatives don't really believe that empathy and the law are in tension - otherwise there never would have been that dog-and-pony show with Alito insisting that he empathizes with immigrants, empathizes with the disabled, and so on - but it's politically convenient for them to pretend so right now.  Prof. Somin, for his part, just seems a bit lost.

    Isn't "empathy" defined as (5.00 / 1) (#15)
    by oculus on Fri May 29, 2009 at 12:16:43 AM EST
    recognition of the effect of one's potential conduct as opposed to ordaining what the course of action will be?

    I dunno (none / 0) (#18)
    by Steve M on Fri May 29, 2009 at 12:21:04 AM EST
    I guess the word means different things to different people.  To me, it means the ability to stand in a litigant's shoes, to appreciate their side of the case.  A wise judge ought to be able to empathize with both sides in a dispute.

    Women are assumed to be (5.00 / 1) (#2)
    by Anne on Thu May 28, 2009 at 09:30:48 PM EST
    well-acquainted with empathy, because we are also assumed to be ruled by our emotions and our hormones; we are feared to be unable to turn them off, and to always be on the brink of going out of control.  Find me a woman who has not been asked if it is "that time of the month" whenever a man wants to delegitimize her arguments, and I will send $25 to the charity of that person's choice.

    Men, on the other hand, are assumed to be ruled by reason and logic; evidence of a smidgen of empathy only makes them complete and superior human beings, which is why Sam Alito's monologue on empathy was such a winner.

    I don't see this pattern changing any time soon.

    It's the whole "mommy party" thing (none / 0) (#4)
    by andgarden on Thu May 28, 2009 at 09:31:48 PM EST
    applied to judicial nominations.

    If there were some way to (5.00 / 1) (#3)
    by andgarden on Thu May 28, 2009 at 09:30:55 PM EST
    "just follow the law" without employing judgement, reason, and human experience, we wouldn't need judges at all.

    Robots (5.00 / 1) (#9)
    by Inspector Gadget on Thu May 28, 2009 at 10:27:17 PM EST
    We could put analytical robots on the bench.

    Robots would also be able to serve... (5.00 / 1) (#14)
    by Addison on Thu May 28, 2009 at 11:34:10 PM EST
    ...much longer than a human being would, thus insuring Obama's pick would remain on the court for millenia to come. Robots make our cars, milk our cows, and give us directions. They deserve a voice on the court. I blame Barack Obama for short-sightedness on this issue, once again caving to the specist American Anthrophilic Society.

    exactly (none / 0) (#10)
    by andgarden on Thu May 28, 2009 at 10:28:52 PM EST
    Did you catch Greenwald's (none / 0) (#16)
    by oculus on Fri May 29, 2009 at 12:20:23 AM EST
    post evidencing Sotomayor's cold ruling in the face of a sympathetic plainff?  The world is upside down

    Greenwald's posts on (5.00 / 0) (#19)
    by oldpro on Fri May 29, 2009 at 01:35:13 AM EST
    Sotomayor are far more nuanced than you suggest and that one was particularly so.  "Cold?"  No.

    I agree, though...the world is upside down!


    somewhat snarky (none / 0) (#29)
    by oculus on Fri May 29, 2009 at 10:55:28 AM EST
    Summary by moi.

    Well (none / 0) (#30)
    by Big Tent Democrat on Fri May 29, 2009 at 12:13:10 PM EST
    I found that particular ruling by Sotomayor quite troubling. Daphne Eviatar of the Washington Independent has a great post on it. I recommend it to everyone.

    Did Greenwald's column re the (none / 0) (#31)
    by oculus on Fri May 29, 2009 at 03:14:33 PM EST
    appellate opinion surprise you?

    They all have empathy (5.00 / 5) (#6)
    by Dr Molly on Thu May 28, 2009 at 09:38:01 PM EST
    Conservatives are just pissed that Sotomayor might have empathy for the have-nots instead of empathy for the haves that the Scalias of the world exhibit.

    Empathy versus sympathy (5.00 / 6) (#12)
    by gyrfalcon on Thu May 28, 2009 at 11:15:33 PM EST
    They're confusing empathy with sympathy, perhaps deliberately but more likely because they don't get the concept.  In a judicial context, empathy means fully understanding the impact a practice or a crime or a penalty or a decision has on the people and their institutions that are subject to it.

    It doesn't mean sympathizing with those people necessarily.  Sometimes it can mean just the opposite, understanding that the decision or penalty or whatever it is can have a real effect on future behavior so that the behavior conforms to law or the Constitution.

    The point of the law, after all, is to constrain behavior.

    As a total layman, I'd say a vivid judicial example of empathy or lack thereof was the Lily Ledbetter decision, where the majority decided that whatever it was, 60 days or something, was perfectly sufficient time to figure out you've been jobbed by your employers and do something about it.  That decision was not only grossly unfair to the Lily Ledbetters, but worse, a blatant roadmap for employers to see an easy avenue to do something illegal and escape the consequences.

    Sotomayor needs to be explicit in the hearings (5.00 / 1) (#17)
    by MyLeftMind on Fri May 29, 2009 at 12:20:59 AM EST
    about the difference between what empathy means and what they're trying to imply it means.  Otherwise her detractors will deliberately imply her empathetic nature means she's a weak willed sap who allows her sympathy and other "womanly feelings" to interfere with her job.

    She should indicate in her opening statement that empathy is a tool that allows a judge understand situations quickly and comprehensively.  She can refer to her numerous "tough on crime" sentences to clarify that empathy doesn't mean sympathy for a criminal.  Then every time the Rethugs try to redefine empathy during the hearings, she should simply repeat exactly what she originally said, emphasizing the fact that empathy is a essential tool in the courtroom. It would drive them nuts.

    Let's write her up a succinct paragraph clarifying the difference between empathy and sympathy and forward it to Team O.  Wouldn't it be great if she used it over and over in the hearings?


    Nah, Just quote Alito. (5.00 / 1) (#21)
    by oldpro on Fri May 29, 2009 at 01:41:50 AM EST
    That WILL drive them nuts.

    Although as some golfer once said, "that's not a drive...that's a putt."


    Jack Balkin makes (5.00 / 2) (#25)
    by andgarden on Fri May 29, 2009 at 08:50:41 AM EST
    a good point:

    Where the laws are unclear, or there are plausible arguments on both sides, we should interpret laws to promote what is just, and not what is unjust. I have no doubt that Sonia Sotomayor would agree with these sentiments completely. But if so, this pretty significantly alters the nature of the debate. What separates her from her critics, then, is not that one side believes in impartiality and the other believes in empathy. What separates them is that they disagree about what is just and unjust.

    Excellent post (none / 0) (#5)
    by Dadler on Thu May 28, 2009 at 09:33:58 PM EST
    Spot on logic, especially regarding the wish, essentially, that humans could be separated from their emotional being when they don judicial robes.  It bespeaks a very acute ignorance of what people are.

    there is no one word (none / 0) (#8)
    by Dadler on Thu May 28, 2009 at 09:56:17 PM EST
    it is the old louis armstrong line about jazz: "man, if you have to ask what it is, you'll never know."  we are emotional creatures, and, unless we are sociopaths, empathy lives and works in all of us.

    I have to ask (none / 0) (#11)
    by lobary on Thu May 28, 2009 at 10:44:51 PM EST
    What is it with you women and special dates? And why do you keep asking me how you look? And why do I have to share my feelings all the damn time? And what difference does it make which way the toilet paper goes? And what's the big deal about me putting my shower towel on the bed for all of thirty seconds?

    Yes, I love you....but sometimes I just don't get you at all :>


    OK...I'm callin' your mom. (5.00 / 2) (#20)
    by oldpro on Fri May 29, 2009 at 01:38:28 AM EST
    I'm sure it's OK (5.00 / 2) (#22)
    by itscookin on Fri May 29, 2009 at 07:36:36 AM EST
    if you put your wet shower towel on the bed for as long as you want - as long as it's on your side of the bed.

    Not really.... (none / 0) (#27)
    by Inspector Gadget on Fri May 29, 2009 at 09:47:52 AM EST
    If the bedspread gets damp, eventually it begins to smell of mildew.

    Perhaps our culture is now too sociopathic (none / 0) (#23)
    by esmense on Fri May 29, 2009 at 08:39:19 AM EST
    to grasp what empathy -- the quality sociopaths lack -- actually is. (David Brooks this morning confuses it with "emotion.")

    The weird demeaning and re-defining of this basic and necessary human quality, and the raw racism and sexism on display in this "debate," have made me feel like I've awoken in an alternate universe where notions of decency, morality and civil behavior have all been turned on their heads. It's like a bad Star Trek script.