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Legal Commentary

: Prawfs

Is Empathy "Lawless?"

By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel

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President Obama's statement last week about his criteria for selecting a replacement for Justice Souter garnered a significant amount of attention. Obama said he would "seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is 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." He added that a "quality of empathy, of understanding and identifying with people's hopes and struggles [is] an essential ingredient for arriving at just decisions and outcomes."

This echoed remarks Obama made during the campaign, and now as then some have criticized these remarks as either being code for "I will select a liberal Justice," or as relying on irrelevant criteria for judging. Thus, Wendy Long of the conservative Judicial Confirmation Network wrote that Obama would become "the first president in American history to make lawlessness an explicit standard for Supreme Court justices."

Now, it should be said that Obama said in the same remarks that he would "seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role." So statements like Long's are a wee bit on the uncharitable and inattentive side. But is her fundamental point right?

Is it lawless or irrelevant to desire a Justice who is also compassionate and empathetic, on the grounds that these qualities are irrelevant to deciding the law?

I was personally not crazy about Obama's statements along these lines, partly because I still think Robert Bork got a raw deal for admitting that one of the main reasons he wanted to serve on the Court was that it would be an "intellectual feast" -- what's wrong with being candid about that? -- and partly because, the more specific Obama gets in his statement, the more problematic the statement is; while judges may be empathetic toward the people before them, I don't see it as their role as such to help people make a living and care for their families, and it's pretty evident that this part of the statement has more to do with reprising Obama's general campaign themes than with anything peculiar to the judicial role.

But that is not to say that compassion, understanding, and empathy are irrelevant to judging, let alone lawless. Those criticisms are wrong. Judges, it is true, are oath-bound to judge "without respect to persons." But to do so is not the same thing as judging without interest in the persons before you, or in the broader universe of people whose affairs will be affected by a judgment in a particular case.

Impartiality is not the same thing as indifference. A judge must be impartial, but should not be indifferent. She can and maybe even should have an informed and empathetic understanding of how the law interacts with people's lives -- an understanding that can and inevitably will be informed by her background, as well as by whatever personal qualities of empathy and understanding she brings to the judicial office.

To be clear, the two are not synonymous -- a person from a rough background can lack empathy and understanding of others, and a person from a privileged background may nevertheless be capable of entering imaginatively into the situation of others. So background isn't a perfect proxy for understanding and should not be treated as one. Nor do these qualities demand a particular result in given cases. One may understand why, say, sharply enforcing a textually supplied filing deadline may have sad results in particular cases, while still thinking that the law, and systemic aspects of the law, require that result. But neither is the intellectual and emotional capacity to understand the lives of the people before the court lawless; rather, and whether or not it shapes one's methodology, it can enrich one's understanding of the nature and stakes of legal decisions. So Obama's statement should not be taken as a recipe for lawlessness. For more on this point, I can only recommend Anthony Kronman's writing on the subject in his fine book The Lost Lawyer.

Full post as published by Prawfs on May 05, 2009 (boomark / email).