Define Empathy: The Next SCOTUS Pick
First posted at RACblog.
The waiting game continues. President Obama has not yet announced his pick for the Supreme Court and various press reports have indicated that he is still in the process of making a decision. So, the national dialogue continues about what qualities and qualifications are necessary in a Supreme Court Justice. One of the most provocative (and interesting) conversations has been about President Obama's insistence that empathy is an essential characteristic that he will look for in the next Supreme Court Justice. This statement sparked a debate that not only questions whether the ability to empathize should be valued but also struggles to define empathy and identify its connotations.
The dictionary.com definition of "empathy" is "the intellectual identification with or vicarious experiencing of the feelings, thoughts, or attitudes of another." In other words, the ability to stand in someone else's shoes.
Seems innocent enough, right? But, critics wonder whether "empathy" is simply a codeword for sympathy, partiality, or even judicial activism. And, they argue that emphasizing empathy jeopardizes the selection of a highly qualified and intellectually rigorous jurist, dedicated to the rule of law.
Wendy Long of the Judicial Confirmation Network, a conservative activist group on the courts, summed up the critical viewpoint recently when she declared "Lady Justice doesn't have empathy for anyone. She rules strictly based upon the law and that's really the only way that our system can function properly under the Constitution."
However, others are defending President Obama's high valuation of empathy, praising his desire to find a Justice who can understand how his or her decisions will affect different individuals and groups of people. Dahlia Lithwick, of Slate, explains, "Empathy in a judge does not mean stopping midtrial to tenderly clutch the defendant to your heart and weep. It doesn't mean reflexively giving one class of people an advantage over another because their lives are sad or difficult. When the president talks about empathy, he talks not of legal outcomes but of an intellectual and ethical process: the ability to think about the law from more than one perspective."
Some have underscored the need for an empathetic Justice by highlighting cases where they believe the Roberts Court lacked empathy. Most frequently, they hold up the Lily Ledbetter case, saying that the Justices were unable to stand in the shoes of women across the country who are paid less than men and unable to stand in the shoes of Congress to determine the true intent of the law that they had created to protect women from pay discrimination.
It seems that acceptance or rejection of the need for "empathy" is largely determined by how one understands its definition. So, it's a battle of rhetoric--and, unfortunately, it's a battle that could follow us through the entire nominations process.
What do you think? How do you define empathy? Is empathy a quality that you hope to see in the next Supreme Court Justice? Can empathy go hand-in-hand with adherence to Constitutional values and the rule of law?
By empathy, Obama should not be talking about self-identifications among groups. He should be talking about shared experience with majorities and/or significant minorities.
The rule of law question is a given. The interpretation of that law is what the Supreme Court is all about. Empathy is a leadership quality as one quality factored together with many.
Supreme court justices are leaders at law, not just glorified bureaucrat clerks. Take that away, and there's neither restraint in protecting constitutional law, or action correcting unconstitutional abuses of law and power.
On the subject of empathy as a quality of shared experience: Here is an example. One important group that is not self-identified, but called, are veterans. Veterans are a large microcosm from all of society with a common, even unifying experience. In a time of asymmetric war with transnational groups that looks like it may flare up from time to time over time, the growing number of combat veterans in society, their experience, their needs, their influence, their training, and their problems will require someone who has been there.
These are people who have become imprinted by the choices of elected officials; and elected officials are allowed or disallowed by the people.
A justice must not only be able to deal with existing laws, but with what the legal demands are likely to be, and how these will best find a place or no place in the Constitution and Bill of Rights. However, the purpose of the Constitution and Bill of Rights and amendments must figure into this empathy for the governed; for those who are the purpose of the document.
May 22, 2009 12:40 PM | Reply | Permalink
"Lady Justice doesn't have empathy for anyone. She rules strictly based upon the law..." - that conservative
It's not Lady Justice, but human Justices who rule. The point of deliberation is to weigh out competing values or valuations, which requires the ability to understand and even feel the parties positions. The knee-jerk conservative is so tightly wound, or pretends to be so, that s/he cannot truly deliberate. Lady Justice wears a blindfold, not blinders. She MUST judge subjectively but not partisanly.
And in ordinary jury trials, the ideal is a "jury of your peers". Well, how can they put themselves in your shoes to be your peer if they have no empathy?
May 22, 2009 1:16 PM | Reply | Permalink
If by "empathy" one means thinking about and taking into account how the decision as applied by the lower courts will affect the futures of the people, then it is to be desired in a judge.
May 22, 2009 1:22 PM | Reply | Permalink