But as used by the president, the word empathy does not strike me as "code" for anything. I don't believe he used it as a proxy for female or for varied life experiences or for something that exists outside of the law at all. Oh, and empathy—at least as Obama has used the word—decidedly does not mean favoring only the poor, women, or minorities in every dispute. Again quoting from The Audacity of Hope:"Empathy … calls us all to task, the conservative and the liberal, the powerful and the powerless, the oppressed and the oppressor. We are all shaken out of our complacency. We are all forced beyond our limited vision."
What a tragically crabbed worldview one must have to believe that empathy means being sensitive only to "groups A, B, and C" because they share certain features or beliefs with you. That isn't empathy—that's bias. True empathy turns that notion on its head. It means, as Ruth Marcus wrote, the ability to recognize the ways your own experiences color your judgment. Empathy means knowing what you don't know and questioning why you think you know what you do.
Professor Douglas Kmiec of Pepperdine Law School has a thoughtful piece in America: The National Catholic Weekly in which he suggests, reflecting on the prophet Micah, that "one can be empathetic toward all sides of a dispute." Empathy means being impartial toward all litigants without being blind to the consequences of your decisions. You can send up such concerns as gooey judicial sentimentalism, unmoored from any fixed legal principle. Or you can admit that judging requires acts of judgment beyond the mechanical application of law to facts and that it's best for judges to know when the mechanical act of deciding cases gives way to ideology and personal preference. Empathy isn't sloppy sentiment. It's not ideology. It's just a check against the smug certainty that everyone else is sloppy and sentimental while you yourself are a flawless constitutional microcomputer.
When a court fails to put itself in the shoes of a 13-year-old girl who is strip-searched at school because it is too worried about the liability of a school administrator, that's not really a lack of bias. When a court fails to read a civil rights statute to protect civil rights in a pay discrimination case because it's worried about future employer liability, that's not really a lack of bias. Obama may be wrong that empathy is the single most important quality a jurist can possess. But his Republican detractors cannot possibly be right, or even wise, in suggesting that a judge who listens only to herself is preferable to a judge who both listens to others and also considers her impact on others.
Now, if the GOP really wants to run out on a rail anyone with empathy or anyone who values it, far be it from me to object. Democrats will be more than happy to feel their pain. But to the extent that the debate over empathy may shape every Supreme Court discussion we are going to have this summer, let's just be clear that the opposite of empathy isn't rigor. It's pretty close to solipsism, or the certain conviction that everything you'll ever need to know about judging you learned from your own fine self.
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