Legal Commentary

Judicial Empathy Is Not Anarchy

By TChris

Joel Hilliker's objection to judicial empathy is apocalyptic:

The court becomes a charity organization rather than a dispenser of justice. The rule of law is destroyed. The rules are written in sand. We are left at the mercy of the whims of the judge.

Anarchy! The end of civilization! Snakes on the plane!

Empathy, Hilliker argues, is inconsistent with impartiality, and judicial impartiality is commanded by the Bible, the only law book that counts. Sen. Orrin Hatch embraces the argument that there is no place for empathy in the heart of an impartial judge while Andrea Lafferty warns that President Barack Hussein Obama isn't looking for ordinary empathy but for "liberal" empathy "for the poor, minorities and gays." In an effort "to build the conservative movement and identify the troops," conservatives are branding empathy as the force that empowers their once-reliable nemesis, the activist judge. [more ...]

Never mind that Hilliker ignores passages from the Bible that can be understood to endorse empathy. Obama explained in 2005 that judges should be guided by the law in ordinary cases where "the law" can be readily discerned and logically applied.

But "what matters on the Supreme Court is those 5 percent of cases that are truly difficult," when "legal process alone" will not suffice, Obama added. "That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy," he said. "In those difficult cases, the critical ingredient is supplied by what is in the judge's heart."

Appellate opinions written by conservative judges characteristically show great empathy for beleaguered employers who seek protection from overly sympathetic juries in discrimination cases, for unfairly burdened businesses confounded by environmental regulations and harassed by the threat of punitive damages, for police officers and prison guards. Consumers, employees, criminal defendants, environmentalists, victims of corporate greed and governmental abuse: not so much empathy for them. We know what is in the heart of conservative judges, and it isn't a veneration of impartiality.

Empathy -- for the little guy, for the powerless, for the meek and mute and broken members of society who aren't noticed by conservative judges, who can't afford teams of lawyers to plead their cases -- empathy allows their voices to be heard: voices of the ordinary and common, voices of the frightened and dispossessed, voices that deserve the attention of Supreme Court Justices.

Full post as published by TalkLeft on May 18, 2009 (boomark / email).