Legal Commentary

Inevitable "Empathy"

By Big Tent Democrat

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.

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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

Full post as published by TalkLeft on May 29, 2009 (boomark / email).