Look - you can slice and dice President Obama's philosophy all you like but the bottom line is he believes a judge's primary responsibility is to get inside the shoes of the parties and tailor the law to what he believes is the most equitable outcome for all concerned. You may like that or not but it is what it is. If you like your outcomes pre-determined and the facts/law massaged to fit that outcome then judicial empathy is for you. But if you want the facts to be what they are and the law disspassionately applied with a slide rule then judicial empathy is hell. As a public defender in Georgia where most judges are former prosecutors who empathize with "law and order", I'll take the slide rule any day. Just follow the law, please, and let the outcome be whatever it is. Only after the slide rule has done its job should a judge show empathy in how the judgment is applied (i.e., sentencing).

Muffin1:

Look - you can slice and dice President Obama's philosophy all you like but the bottom line is he believes a judge's primary responsibility is to get inside the shoes of the parties and tailor the law to what he believes is the most equitable outcome for all concerned. You may like that or not but it is what it is. If you like your outcomes pre-determined and the facts/law massaged to fit that outcome then judicial empathy is for you. But if you want the facts to be what they are and the law disspassionately applied with a slide rule then judicial empathy is hell. As a public defender in Georgia where most judges are former prosecutors who empathize with "law and order", I'll take the slide rule any day. Just follow the law, please, and let the outcome be whatever it is. Only after the slide rule has done its job should a judge show empathy in how the judgment is applied (i.e., sentencing).

I feel sorry for those in Georgia who get a public defender who does not know what the difference between empathy and sympathy is!

Please consult a dictionary and learn what the definition of empathy versus the definition of sympathy.

A perfect example of empathy is the playing of "Devils advocate" of which any competent lawyer surely must do, I pray for the sake of your poor clients that you actually are using that empathy even if you don't understand that is what you are doing!

I feel doubly sorry for those in Georgia who get a public defender who does not know that facts are often not clear, but fuzzy and the perspective from which they are looked at has a huge affect on how those facts are interpeted, hence the need for empathy when interpeting facts so that one can rise above their own human biases, prejudices, and preconceptions!

One need only as look at the current legal question as to whether or not waterboarding is in FACT torture, depends upon whether or not you are using the perspective of a Bush lawyer who only cares for their boss or a competent independent lawyer that cares for the rule of law!

Criticalthinkerr,

I don't know what dictionary you're referring to but the Webster's I'm looking at says, "1. the imaginative projection of a subjective state into an object so that the object appears to be infused with; 2. the capacity for participation in another's feelings or ideas." I don't want a judge to look subjectively at an officer's actions when he testifies about the search of my client's car. I want him to look objectively (which is the law, by the way). I don't want a judge to try and understand the feelings or ideas of a crime lab technician when he trying to determine chain of custody.

Facts are what is left over after allegations are adjudicated. Allegations are fuzzy, facts are not. Under the law (at least in Georgia), the "trier of fact" concludes what the facts are based on a calculation of many different factors, none of which include subjective reasoning or trying to understand someone's feelings or ideas.

Take care.

I'm amazed that an attorney doesn't acknowledge the fact that the law often comes into conflict with true justice. Without empathy, real justice is impossible.

re: Muffin

Empathy definition from Merriam Webster:

2: the action of understanding, being aware of, being sensitive to, and vicariously experiencing the feelings, thoughts, and experience of another of either the past or present without having the feelings, thoughts, and experience fully communicated in an objectively explicit manner ; also : the capacity for this

You and many others seem to be caught up in the idea of empathy is about "feeling for", when empathy is really about viewing situations from "perspectives different from your own personal perspective", which is neded in order to overcome one's own prejudices, biases and preconceptions.

How can one possibly use critical thinking to evaluate both sides of an issue without doing this?

How is it possible to play the "devils advocate" without doing this?

So I ask you this YES or NO question:

Do lawyers and judges have to be able to play the devils advocate and look at a case from both sides to make a decision?

If you say yes, then you AGREE with Obama that judges should have empathy!

Like I said in my earlier post - playing devils advocate is the most common form of empathy, even if you and others don't realize it!

Critical thinking is simply IMPOSSIBLE without empathy, because ones own personal HYPOCRISY and biases cannot be overcome without that mental shift in perspective away from ones own personal perspective.

Do you really think that judges and lawyers should not be critical thinkers?

Because that is what you have in a person who does not use empathy!

criticalthinker: I feel sorry for those in Georgia who get a public defender who does not know what the difference between empathy and sympathy is!

I'd caution others in Georgia to make sure their public defender passes the smell test with two simple questions:1.) Briefly explain the difference between empathy and sympathy. 2.) Do others also know you as "Muffin-One?"

Prof. Kmiec helps provide the various nuances of the term, including "the notion that one can be empathetic toward all sides of a dispute." If the person is only selectively so, it very well is likely s/he would not meet one or more of the criteria supplied by Obama for his ideal nominee.

It probably can mean more than you say here, but you cover enough to show its importance overall.

-j

CT, Bamster, et al

Hahahaha - that's Muffin1 (or 2). A very manly-man name, I assure you.

The Webster's definition you gave of empathy is not substantively different than the one I also found in Webster's. Of course empathy is not necessarily "caring" or "sympathetic". It is necessarily subjective - a subjective view of another's position. In the context of law empathy and objectivity are oxymoronic. You do not understand how this is applied in jurisprudence because your layperson view of law is apparently that of an old man (or woman) sitting on the bench, looking at the issue from the respective positions of the parties and then rendering an equitable decision. This isn't Judge Judy. That is not now nor has it ever been the role of a judge in the American judicial system. I'm not talking about a "conservative" or "liberal" view of the system - I'm talking about an American view based on common law, statutes and the federal and state constitutions. An American judge is essentially an umpire behind the plate. He or she is given a set of rules that is applied to the game. It is not the duty of the umpire to view or apply those rules after subjectively considering the viewpoints of the players. Rather, it is his or her duty to apply the rules objectively regardless of who it effects or how.

Empathy is essential to a lawyer because we are advocates. But except in sentencing or applying a judgment, lawyers do not want judges to be subjective. We want objectivity. Objectivity in the law doesn't mean "trying to be fair" - it means looking at a situation through the perspective of a "reasonable person in the community". Like an umpire that doesn't supply his own interpretation of the strike zone or that of the batter (or catcher) - but the interpretation that has been codified and collectively accepted by other umpires and the league.

This "reasonable person" standard is a fundamental part of law. If you don't believe me ask any trial lawyer you know. Prosecutor, defense attorney, civil attorney. We don't want judges that analyze assertions and apply procedures through the prism of a subjective view of competing sides. We want judges that strive for judicial objectivity because that is essential to a system that should be predictable, consistent and coherent. We want a nation of laws, not of men.

Lawyers want that because we know its essential to the health of the system (and therefore the country) and the benefit of our clients. We know that to live by empathy is to die by empathy. Its unpredictable, chaotic. My entire career I have practiced in a conservative State where prosecutors are the "good guys" and most judges are former prosecutors that have to get re-elected every four years. I don't want these judges to subjectively view the perspective of my indigent, criminally charged client against that of the clean-cut, uniformed wearing officer. I'll take an objective standard, thank you. I'll take the judge that puts aside his desire to get inside what he thinks is the perspective, motivations and interests of my client and alleged victim and instead just follows the procedural guidelines for the admission of evidence and application of law to resulting facts. No judge is perfect - subjectivity will inevitably creep in at times. But objectivity should (and is) the standard.

Of course, you will find some word or phrase I've written that you will mischaracterize. That's cool - I understand this is essentially a political debate between hot heads shouting and insulting each other. I get it. I won't even respond again and will give you the last word! Just do me one favor - the next time a judge or supreme court uses empathy to rule for the "other side" and "your side" gets screwed, remember this debate and know that you got what you asked for.

Your appeal to authority here is questionable since others who are in the law disagree with your understanding of empathy and judging, including those who had some experience in front of real life judges. They also will tell you CJ Roberts' umpire metaphor was stupid. Sportscasters will also tell you how subjective the strike zone is in real life -- umpires cannot even stick to the strike zone; you expect a sort of rules committee (to continue the metaphor) will be more restrained that umps are?

I understand this is essentially a political debate between hot heads shouting and insulting each other. I get it. I won't even respond again and will give you the last word! Just do me one favor - the next time a judge or supreme court uses empathy to rule for the "other side" and "your side" gets screwed, remember this debate and know that you got what you asked for.

How very patronizing. You are right, and oh so nice and rational, while those who disagree are "hot heads" that shout and insult .. you just insult our intelligence. Oh so calmly. Someone here argued that empathy includes a sort of 'devil's advocate' role. So, when a judge stands in the shoes of the other side, considering each point of view and so forth, we are supposed to think we were "screwed" or something. After all, we hotheads cannot understand that sometimes this process will result in one or the other side losing.

BTW, the "reasonable man" construct takes into consideration any number of things, and if you don't think empathy is one factor in the mix, well, I think you are avoiding reality.

-j

I believe the debate about "empathy" is ranging too far afield. In matters of law, issues are weighed by reference to constitutions, codes, case law, judicial pronouncements, and other established authorities. Webster's dictionary -- or any other non-legal dictionary, as far as I know -- can make a contribution to the argument but cannot be determinative.

Does the word "empathy" appear in any of the primary authorities? So far, I haven't seen any claim that it does. The president, I infer, has laid down an extra-legal criterion for his selection of the next associate justice. This would be roughly equivalent to hiring a violinist for a symphony orchestra on the basis of dental hygiene. Mr. Obama should therefore either translate "empathy" into the language of the law or retract it.

This is not a partisan point. I am a supporter of the administration.

This is nonresponsive to the arguments actually made on this message board.

Why was criticalthinkerr's analysis of what people who interpret the law do off base? Why are those who note that the law includes "justice" (Preamble of Constitution, for instance, talks about "establishing justice") and to correctly interpret that also includes empathy wrong? When deciding various legal matters (e.g., "reasonable" searches or "cruel" punishments as applied to real people) is empathy not really a factor, in reality and in principle? As to "primary authorities," two categories cited by Phillip Bobbitt, to name one, in interpreting the law is 3) ethical; 4) prudential. Both include some empathy component. The others probably do too.

As Justice Blackmun once noted some "claim that [ignoring empathy], however harsh, is compelled by existing legal doctrine. On the contrary ..."

-j

Joe_JP purports to answer my question as to whether "empathy" appears in any primary legal authorities in the affirmative:

"As to 'primary authorities,' two categories cited by Phillip Bobbitt, to name one, in interpreting the law is 3) ethical; 4) prudential. Both include some empathy component. The others probably do too."

I'd be fascinated to see a judge's (or justice's) ruling on whether that statement is responsive. Meanwhile, the rest of us may draw our own conclusions.

What is the value of ignoring most of what I said and focusing on one specific point made, alleging that I "purported" to answer your question in any complete fashion?

I cited a source that discussed how the law is interpreted, one that provided various criteria for which empathy was a factor. It appears the concern here is that this is in effect a secondary source, not a primary "constitutions, codes, case law, judicial pronouncement," which I will admit. I should have specified that what the analysis there did was -- by use of such primary sources -- show how law is interpreted in ways that include empathy.

All the same, I cited the Preamble of the Constitution and asked how you can "establish justice" without empathy, asking you to respond to others on the thread that explained how the two are not mutually exclusive, but in fact interlocked. I will let others find some code with appropriate analysis attached. But, I cited a "judicial announcement" or at least a justice (Justice Blackmun) as well. A fuller quote:

On the contrary, the question presented by this case [489 U.S. 189, 213] is an open one, and our Fourteenth Amendment precedents may be read more broadly or narrowly depending upon how one chooses to read them. Faced with the choice, I would adopt a "sympathetic" reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging.

These emotions are either part or closely related to "empathy" as used here. Justice Souter in his Kansas v. Marsh opinion:

In the face of evidence of the hazards of capital prosecution, maintaining a sentencing system mandating death when the sentencer finds the evidence pro and con to be in equipoise is obtuse by any moral or social measure. And unless application of the Eighth Amendment no longer calls for reasoned moral judgment in substance as well as form, the Kansas law is unconstitutional.

Again, use of empathy is part of this process. The fact that "reason" is before "moral judgment" does not suddenly erase empathy from the equation. As Justice Kennedy noted in Kennedy v. Louisiana, when interpreting the 8th Amendment, the state must remember: "Evolving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule." How the SC determines if "dignity of the person" and "decency" is in place -- putting aside if you like this test or not -- without some sense of empathy is simply unclear to me. Another test where empathy factors in is the "shocks the conscience" test. Again, empathy is part of how you determine if that applies, if only to determine how the regular person would determine it in any given case.

Many justices cited the importance of empathy. In an opinion, Justice Thurgood Marshall spoke about the "insensitivity to the human dimension of these decisions," underlining his belief that empathy had role in judging. [Beal v. Doe] Any number of obits of Justice Brennan referenced how empathy was an important aspect of his judging on the Supreme Court. This includes in various majority opinions.

To return to the "devils' advocacy" that one person on this thread cited, this ability to "stand in the shoes of another" is also part of "empathy" and fundamental in law. For instance, Justice O'Connor set forth the "reasonable observer" test to determine if the Establishment Clause is breached. See, e.g., Lynch v. Donnelly. Here, the judge had to determine if a certain practice -- through the eyes of such a person -- appeared to endorse religion in an illegitimate fashion. She noted that this was relied on "the basis of judicial interpretation of social facts."

Again, how one can determine the feelings of those whose religions are other than your own are so involved without "empathy" is very unclear to me. This is also about determining what exactly is meant by "empathy," which is why appeals to the dictionary (also used in legal opinions, btw) is important, since we need to know exactly what is being discussed. Empathy often is an explanation of what is being done, not a rule applied in the opinion. This is why citing a "code" is a bit dubious, since the judge uses "empathy" to apply the code in any given situation, which I why I cited Phillip Bobbitt's analytical piece.

As usual, each can draw their own conclusions. This includes what we can draw from your "fascinations." Some, for instance, might think that just -- to quote Muffin2 -- "insulting."

-j

Joe_JP:

Thank you for your expanded answer. My question was, very specifically, whether the word "empathy" could be found in any primary authorities. You argue that empathy is implicit in many judicial obligations, but I still don't see a citation of the word itself.

The one quotation that, in my view, comes close is Blackmun's statement, ". . . compassion need not be exiled from the province of judging." "Compassion" and "empathy" are almost synonyms. They both denote a visceral identification with the feelings and sufferings of another. They are not abstract, like "moral judgment" or "respect for dignity," and they go beyond the intellectual and imaginative gymnastics of serving as devil's advocate.

It would have been very interesting to witness the reaction to President Obama if he had said he was seeking a compassionate justice.

When Obama uses words like "empathy" or says things like "It's also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation," many probably get the idea that he is kinda talking about "compassion." We need not be too literal here. The terms for the regular person are rather related. And, many people are accepting of that -- contra an op-ed some time ago that Thomas is a "cruel" justice. Similarly, if "sympathy" or any related term is cited in cases as part of judging, it is unclear why "empathy" is more "extralegal." If anything, "empathy" might be a safer term, if it is defined in some of the ways expressed here.

Likewise, you raised a question and made a (perhaps tentative) conclusion -- you suggested the lack of the word "empathy" in various primary sources suggests it is an "extralegal" component in judging. Not having the wherewithal to spend time looking into the case law, many here attacked that claim indirectly. They looked at the components of the term and suggested that judging requires it. It is like intellectual rigor and honesty. Justice Brennan was said by many to have used "empathy" in his opinions. A word search of opinions such might not find that word, but this in no way means they are wrong.

Thus, the lack of the word "empathy" in an opinion or more so a code (the Constitution, for instance, does not really spell out how to interpret it -- this must be reasoned out) is of limited importance. It also does not show that it is an extralegal. Finally, doing this requires understanding what empathy is, which can be seen as a type of process. I don't know why this is deemed "intellectual and imaginative gymnastics." Again, we shouldn't be so literal. If so, we can see all the signs of happiness, but if the person doesn't say "I am happy," it would not be enough.

Anyway, I appreciate the reply.

-j