Empathy and Law: A False Dichotomy

PHUTATORIUS
As the Sotomayor confirmation hearings continue this week, and as folks like Jeff Sessions get all worked up about (1) President Obama's invocation of "empathy" as a quality we'd like to see in the judiciary, and (2) whether it's reasonable to suggest that a person's background and life experience might have something to do with what they would decide as a life-tenured judge, it's important, I think, to introduce just an eensy-weensy bit of reality and perspective to the discussion.

Now I know that "reality" and "perspective" are natural enemies of the sort of feigned outrage we're seeing from Sessions, who is, apparently, the GOP's attack dog here. So to suggest that the Junior Senator of Alabama constrain himself to these values is sort of like asking a bulldozer to pause and consider the structural integrity and refinement of the building in front of it. But we're all about lost causes here at Feigned Outrage. (So says Google Analytics, anyway.)
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The right-wing talking point goes like this: Judges shouldn't act on mushy concepts like "empathy." They should follow The Law. And if they act on "empathy," they're not following The Law, and they're suddenly — and this is a beloved bromide of the judge haters — "making law rather than applying the law."

And of course anyone who knows anything about how the law works — and this should include you, Senator Sessions, given that you were once Alabama's Attorney General — would know that it is an exceedingly rare occasion on which a judge has to choose between the Empathy Answer and the Law Answer. This for two reasons:

For starters, despite Congressional Republicans' best efforts, Empathy is often incorporated into The Law. In fact, a great deal of our most important and treasured laws — our Constitution's First Amendment and Equal Protection Clause, the Voting Rights Act, the Civil Rights Act of 1964, shoot: even the stimulus bill, if you still believe in it — are monuments to empathy.

A bunch of white guys don't pass the Civil Rights Act of 1964 unless they're capable of empathy. Sure, if you're cynical (and I'm not, by the way: well, not on this point), you could say that they acted in the interest of securing the stability of the nation by extending protections to an increasingly marginalized and dissatisfied underclass. But even to get to that point, to realize that a law was necessary, if not desirable, you have to be able to consider the perspective of someone from a different background. To know the real effect of a law, you have to consider — you have to predict — how it will affect the people subject to it. Sounds like "empathy" to me, and it sounds appealing.

Second, and probably more important: at the Supreme Court level there aren't that many cases in which The Law obviously compels a certain result. Sure, folks in the gallery may feel that way — and the lawyers at the lecterns may argue that way — but the questions before the Supreme Court are the tough ones. They're the questions that Congress didn't anticipate when it enacted a law. They're the questions on which the several Courts of Appeal couldn't come to agreement. The business of the courts isn't just to override the express will of elected officials and legislate by fiat. That's a happy last point of argumentative retreat when you don't like what a court decided. The job of the courts is to fill in the gaps in the law: to decide what the law means and how it applies when the Framers and Congress, despite their best efforts, left open litigation points.

Certainly as a critic, on the sideline, with a vested ideological interest in the outcome of a case, one can talk oneself into believing that The Law compelled a certain result — the result that one favors. And working backward from that point of epistemological certainty (and this is a space folks both on the left and on the right are comfortable working in, although I would submit that liberals may be more susceptible to uncertainty and less attracted to batten-down-the-hatches-style conviction), one can conclude that the judge who ruled in the other direction was necessarily led astray by impermissible considerations — human failings like bigotry, callousness, religious zealotry, provinciality, venality, empathy. (Wait a minute: empathy? Is that so bad?)

But I'd submit that this isn't a fair or realistic way to review the actions taken in most Supreme Court cases — and certainly in most of the high-profile, front-line-of-the-culture-war cases. The fact is that The Law very, very often doesn't compel a certain result, and it's up to the Justices to do their best to untangle the complexities of a given case and decide (gasp!) what result The Law should compel. A whole host of considerations necessarily leak into that process, and we can talk about what considerations should and should not be permissible. But the notion that a judge should draw on his or her own personal background and experience — that is, the accumulated data that form the basis for their exercise of wisdom — should not be controversial. We can idealize a Law that is so compelling that wise white men and "wise Latinas" would spit out the same outcomes. But that Law doesn't exist, principally because law is an artifact of humankind, and it therefore incorporates all of our best intentions and failures to meet them. It reflects our diversity of opinion and interests. Law is emphatically of the people, by the people, for the people, and when a judge is called upon to decide a case, it seems to me entirely appropriate that the judge should keep in mind that his or her decision is not one made in legal abstraction — it's not a matter for cerebral processing or an exercise of rhetoric and logic — but one that will absolutely have consequences, and generally very significant consequences, for real people.

That, at least to me, is the role that "empathy" should have in judging. And I think it's important.