President Obama's nomination of Solicitor General Elena Kagan to the Supreme Court, with confirmation hearings scheduled to begin today, has unleashed a tsunami of media accounts of her legal career and personal life. Strikingly absent from the sweeping coverage, though, is a subject that drew widespread attention when the president learned of Justice David Souter's decision to retire.
Speaking of replacing Souter, the president told reporters at the time: "I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook; 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.
"I view that quality of empathy," he continued, "of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes."
When Obama first spoke of Kagan, his list of her judicial qualifications was near-Homeric. Nevertheless, empathy was not among them. Although he had emphasized empathy in his book The Audacity of Hope, during his campaign for the presidency, and before he chose Sonia Sotomayor as his first Supreme Court nominee last year, it's gone now.
What happened to empathy?
Perhaps it went missing because of the uproar from Obama's political opponents. There was, for example, Republican National Committee chairman Michael Steele's radio rage (while substituting for Bill Bennett): "Crazy nonsense empathetic. I'll give you empathy. Empathize right on your behind!"
Lacking the decibels and anatomical parts of Steele's diatribe, criticism also came from the academic right. Northwestern University law professor Steven G. Calabresi, cofounder and chairman of the conservative Federalist Society, objected, "We should not let Mr. Obama replace justice with empathy in our nation's courtrooms."
To consider whether empathy is a desirable judicial credential, it's essential to keep its meaning in mind. Empathy is the ability to vicariously experience another person's thoughts, feelings, or attitudes.
Sympathy and empathy have close syllabic identities. But while their meanings may be deliberately or accidentally equated, they are not the same.
Empathy may or may not evoke sympathy. The empathetic ability to enter the thinking and feeling of an ax murderer produces understanding, not sympathy. Understanding the human condition is the gist of empathy.
To appreciate what that has to do with the demanding work of competent judging, consider what all jurists are sworn to do: dispense justice. This is an abstract responsibility. Unlike a plumber's fixing a leak or a surgeon's mending a broken bone, saying a judge dispenses justice is unspecific.
The specificity is found in those who do the work. Whatever their race, religion, sexual orientation, or alma mater, judges are real people. And because their judgments inevitably affect the lives of real people, we have every right to insist that judges - however extensive their professional qualifications - be excellent human beings. And this excellence must include the ability to understand the human condition.
Thus, the core question is: What kind of person is a judicial nominee? That's an elementary question, but that's precisely why it's essential.
Law and courts are not the fuel and engines of an inanimate apparatus cranking out justice. Whether a judicial robe attires a former judge, a lawyer, an academic, a politician, or a career bureaucrat, it is worn by a person. That person will be in every one of his or her judgments, and that person must be considered and evaluated before he or she is on the bench.
Empathy is not a classic judicial standard, such as impartiality or adherence to the dictates of law. But it should always be part of a judge's decisions.
Empathy's relevance is most obvious in cases involving such intensely personal matters as marital conflicts, child abuse, or criminal sentences. The Supreme Court's cases are rarely so personal, but they all inevitably affect people.
In the past few weeks, there has been some valuable commentary on the subject from two people with decades of relevant experience: a retired and a sitting justice of the Supreme Court - each of whom, not incidentally, was the nominee of a Republican president.
Speaking at Harvard's commencement last month, retired Justice Souter (who was nominated by President George H.W. Bush) noted that judges' understanding of facts "turns on the experience of the judges, and on their ability to think from a point of view different from their own."
Another comment on empathy came last month from Supreme Court Justice Anthony M. Kennedy (an appointee of Ronald Reagan), in an address to the Palm Beach County Bar Association and the Forum Club of the Palm Beaches. In choosing a judicial nominee, he said, rather than trying "to figure out how the judge would rule on a specific question ... what you should ask is whether the judge has the temperament, the commitment, the character, the learning to assume those responsibilities."
In response to a question from the audience, Kennedy rejected the idea that empathy has no place in court decisions. "If lack of empathy means you close your eyes to the law's decree, that's just silly." He stressed that principles can't be formulated "without being aware of where those principles will take you, what their consequences will be."
Kennedy asked rhetorically whether a judge is not supposed to know about "capital defendants in a single, windowless, 12-by-8 cell for 20 years, waiting for their sentence." He said, "Law is a human exercise, and if it ceases to be that, it does not deserve the name law." nolead begins
Having spent a half-century trying cases and a few years teaching the subject, I'm surprised that the debate over empathy is so focused on judges' understanding of the parties in cases before them. The value of empathy in the practice of law goes well beyond that.
Notably absent from the public discussion is the essential role empathy plays in judges' ability to understand the large class of people whom they constantly deal with.
Whether they sit on lower courts trying cases or higher courts hearing appeals, judges deal with lawyers who are trying to persuade them to make the decisions their clients want. In the real world of litigation, the empathetic ability of a judge to get inside lawyers' minds and understand their thinking can be an invaluable skill in the search for the legal truth at the heart of every just decision.
For trial lawyers given to extravagant advocacy, it's hard to imagine a more sobering thought than a judiciary skilled at empathizing with them.