One is surely entitled to say that President Obama's repeated claim that he seeks "empathy" in a replacement for Justice David Souter is something less than a crisp constitutional standard. But the Republican war on empathy has started to border on the deranged, and you can't help but wonder to what purpose.
Webster's defines empathy as "the experiencing as one's own the feelings of another." Obama, in The Audacity of Hope, described empathy as "a call to stand in somebody else's shoes and see through their eyes." To Obama, empathy chiefly means applying a principle his mother taught him: asking, "How would that make you feel?"before acting. Empathy in a judge does not mean stopping midtrial to tenderly clutch the defendant to your heart and weep. It doesn't mean reflexively giving one class of people an advantage over another because their lives are sad or difficult. When the president talks about empathy, he talks not of legal outcomes but of an intellectual and ethical process: the ability to think about the law from more than one perspective.
But Republicans have gathered up their flaming torches and raised their fists to loudly denounce empathy and all empathy-based behavior as evil. Last Friday, RNC Chairman Michael Steele, sitting in for Bill Bennett on the Morning in America syndicated radio show, blurted out, "Crazy nonsense empathetic! I'll give you empathy. Empathize right on your behind!" Nice.
Sen. Orrin Hatch of Utah, speaking on This Week, warned that if a jurist were to show empathy, "politics, preferences, personal preferences and feelings might take the place of being impartial and deciding cases based upon the law, not upon politics." In an opinion piece in the Washington Times warning that Obama is poised to be the "first president to make lawlessness an explicit standard for Supreme Court Justices," Wendy Long of the Judicial Confirmation Network saw empathy as a kind of temporary insanity that so distorts a jurist's vision as to make it difficult "to uphold the federal judicial oath to dispense justice impartially." Over on Fox News, Sean Hannity warned that empathy is the first step toward "social engineering." And in a delicious Freudian slip, Sen. Jeff Sessions of Alabama snorted: "I don't know what empathy means."
You don't say.
When did the simple act of recognizing that you are not the only one in the room become confused with lawlessness, activism, and social engineering? For a group so vociferously devoted to textualism and plain meaning, conservative critics have an awfully elastic definition of the word empathy. It expands to cover any sort of judicial malfeasance they can imagine. Empathy—the quality of caring what others may feel—signals intellectual weakness, judicial immodesty, favoritism, bias, and grandiosity. John Yoo also seems to be of the view that the kind of emotional incontinence that begins with empathy for others quickly leads to being "emotive" on the bench. Evidently it's a short hop from empathy to having the judicial vapors.
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.