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| | | What Is Judicial Empathy?
According to Obama -- for all intents and purposes the most relevant opinion here – empathy means having “common sense, practicality...” and “a sense of what ordinary Americans are going through everyday.” On top of that, however, Obama has repeatedly referred to understanding the troubles of the “powerless” in society when elaborating on empathy. Geoffrey R. Stone, writing in the New York Times a few days ago, stretches empathy to a somewhat absurd result. He says, "...empathy helps judges understand the aspirations of the framers, who were themselves determined to protect the rights of political, religious, racial and other minorities." Though he also claims empathy means having an eye for real-world consequences (the unarguably good kind of empathy), his definition, I think, empties empathy of all its significance. That, or Stone's definition is another way to hide the fact that being empathetic means being empathetic to minorities, women, etc.: liberal. | |
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• Is the distinction that they are more willing to favor minorities, women, etc., or that they realize the inequality and give more weight to rectifying the inequality? | | | Conservatives have had at least two responses to the talk about empathy. First, some argue that empathy should not be (and is in fact, antithetical to) the way in which judges should interpret the Constitution. Jonah Goldberg, writing in the National Review, argues that judges should analyze the Constitution from a textual and historical perspective (in traditionally “conservative” modes of argument) and employ Weschler-like neutral principles to every case. Goldberg quips: “What I don’t understand is why we should abandon an ideal [of being impartial] simply because it is unattainable...If an umpire can’t call each game flawlessly, should he stop trying? Maybe for 95 percent of pitches the ump should call ’em straight, but for the other 5 percent he should give the black or gay batters the benefit of the doubt?” He calls empathy “state-sanctioned prejudice.” | |
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• I don't know Jonah Goldberg, but he sounds like an idiot. As a conservative, I hate some of these one-sided arguments that stick to strict originalist principles, which is unrealistic (in my opinion) for a functioning and continuing society. Governments are imperfect, and sometimes there needs to be "balancing", but it all must be realistic. For example, affirmative action is a good idea, but it should be more related to socio-economic status rather than pure skin color to truly serve its purpose. Empathy helps one understand these imbalances, but again, I think the liberal/conservative divide is how much responsibility the government has in balancing | | | Other conservatives take a different route – the one of my classmate – and say that conservatives are empathetic too, just not necessarily for racial minorities and women and gays. A media watchdog blog rightly points out that both Thomas and Alito called upon their personal experiences during their confirmation hearings. Alito spoke of connecting his family's experience with discrimination to hearing cases on immigration. And there have been a few instances of conservative "empathy," in the liberal construct of it: In Gonzales v. Carhart for instance, Kennedy spoke of the “anxiety” women might feel when hearing about an “invasive medical procedure.” And perhaps the dissents in any number of cases on affirmative action were motivated by empathy for whites who were de facto disadvantaged by the rulings. In other words, conservatives could say they're empathetic too - just empathetic for other groups of individuals. I assume part the reason conservatives rarely do this is is how unpalatable it would sound for a conservative justice to rule against a plaintiff in a civil rights case because he feels for the whites who are being maligned against. | |
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• One of the questions that keeps coming up is what role should a judge have? Is it the judge's responsibility to protect or empower minorities? Is this an inherent role of the judiciary in American society? | | |
So What?
Being empathetic could just mean having an eye for the practical results of opinions, a mode of interpretation that's difficult to find fault with. Obama sometimes tries to put empathy in that light, but more often than not, he turns it into a coded test for certain liberal issues. Realizing that the term is basically empty – or just a code for socially progressive – can cut both ways. If Obama is able to continue to dupe the public into thinking his empathy is some sort of objective (neutral?) quality in future justices, he may find it's a successful tactic (and trickle down to support liberal judges across the Country). On the other hand, if conservatives successfully pull the rug from under "empathy," Obama may be left looking like a bleeding heart to the public. Over the course of the next few weeks, we'll surely confront the issue again as Obama names his next appointment. It would be unthinkable for Obama to choose a conservative justice who “empathized” with the big corporations rather than individual plaintiffs who sue them on civil rights or other grounds.
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• I don't think this is empathy you're talking about, it's something deeper in judicial philosophy. While liberal/conservative distinctions may reveal such underlying preferences, the issue is not black and white. I think this paper is an oversimplification of an important aspect of judicial philosophy | | | \ No newline at end of file |
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