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Empathy and Judges May 27, 2009

Posted by Dwight Furrow in Current Events, Dwight Furrow's Posts, ethics of care, Political Philosophy, politics.
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When Obama first discussed his thinking about the Supreme Court nomination to replace Justice Souter, he mentioned empathy as a qualification. And that set off a firestorm of criticism from Conservatives. Republican National Committee Chair Michael Steele howled, “Crazy nonsense empathetic! I’ll give you empathy. Empathize right on your behind!”

In more temperate tones, Senator Orrin Hatch of Utah warned that if a judge were to show empathy, “politics, preferences, personal preferences and feelings might take the place of being impartial and deciding cases based upon the law, not upon politics.”

But conservatives misunderstand empathy and legal judgment.

Empathy refers to our capacity to feel what others feel, to know what it is like to walk in someone else’s shoes—and it is absolutely essential to sound legal judgment.

As I pointed out yesterday, judges have to interpret the law and apply the law to the facts that constitute the case on which they are ruling. Supreme Court justices are making decisions that will set policy and legal standards for the entire nation. So their decisions have consequences. But most judges are wealthy, well-educated elites, insulated from the struggles less privileged people must endure. And their occupation gives them a unique outlook on the world not widely shared by people outside the legal profession. If their conception of the impact of their rulings is bounded by the cloistered, privileged parameters of their own lives, the result will not only be bad law, it will be law that is partial to their social and economic class. It is simply a myth that there is some standpoint, from which a judge can rule, shorn of values and divorced from the circumstances of life. The belief that there is such a standpoint is itself an ideology and a pernicious one at that.

So how can judges rule impartially? Through empathy—our ability to feel what others feel, the moral capacity that conservatives are so quick to ridicule

As Obama points out in The Audacity of Hope: “Empathy … calls us all to task, the conservative and the liberal, the powerful and the powerless, the oppressed and the oppressor. We are all shaken out of our complacency. We are all forced beyond our limited vision.”

Empathy is a necessary condition of impartiality—at least the kind of impartiality that humans (as opposed to machines) are capable of—because empathy makes us imagine, and thus come to know, how our actions affect others.

Stanley Fish, in commenting on this flap over empathy in the New York Times, is  alive to the role of values in applying the law but also seems to misunderstand the role of empathy. He writes:

“Rather than reasoning from legal principles to results, an Obama judge will begin with the result he or she desires and then figure out how to get there by what only looks like legal reasoning.

This is the answer to Dahlia Lithwick’s question, what’s wrong with empathy? It may be a fine quality to have but, say the anti-empathists, it’s not law, and if it is made law’s content, law will have lost its integrity and become an extension of politics. [Ed. Lithwick’s article is here]

Obama’s champions will reply, that’s what law always has been, and with Obama’s election there is at least a chance that the politics law enacts will favor the dispossessed rather than the powerful and the affluent.”

Fish seems to think a judge is on the horns of a dilemma—either she feels empathy and thus allows her preconceived moral ideology to govern her understanding of the law, or she coldly applies the law as written and thus enables her privileged position as advocate for the ruling class to be smuggled in disguised as objectivity.

But there need not be such a dilemma. Responsible judges begin with the law as written, constrained by precedent and legislative history. But then they ask whether the law so interpreted has the effect intended by lawmakers.

One needs empathy to answer this question. Empathy is not a conduit through which we splatter our preferences on an otherwise autonomous law. Empathy helps us discover the facts—it is fundamentally epistemological, not ideological.

 Cross-posted at Reviving the Left.



Judicial Activism May 26, 2009

Posted by Dwight Furrow in Dwight Furrow's Posts, Political Philosophy, politics.
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Obama’s nomination of Sonia Sotomayor to the Supreme Court has already provoked complaints that she lacks the intellect to be a Supreme Court Justice. These complaints are coming from intellectual giants in the Republican Party such as Karl Rove and Rush Limbaugh. I’m sure we will hear, also, that she is a threat to white men everywhere from the same deep thinkers.

But after the silliness, racism, and sexism scurry under a rock where they belong, the opposition is likely to focus on charges that she is a judicial activist. This is standard Republican fare whenever a liberal is nominated to a judgeship.

It is also utter nonsense.

This idea of judicial activism has been paraded in public since courts were forced to deal with issues of civil rights in the 1950’s and 60’s and abortion in the 1970’s.Striking down Jim Crow laws was unpopular in the South, forced busing was unpopular everywhere, and the abortion debate required the court to deal with issues that could not have been anticipated by the people who wrote our Constitution.

People who didn’t like these decisions argued that the court was making law, not interpreting it—hence the charge of judicial activism. It means going beyond the constitution in order to achieve some political end.

But the distinction between making laws and interpreting laws is not precise. The constitution contains nice sounding clauses such as “equal protection of the laws”, “due process”, “freedom of speech”, “separation of powers” etc.

But the constitution doesn’t tell us what these phrases mean and it doesn’t tell us how to apply them. No text is self-interpreting and the very fact there is a case before the Supreme Court entails that there is disagreement on a question of interpretation. If the plain meaning of the text was sufficient, there would be little reason to have a supreme court.

The question, of course, is what criteria should justices use when making interpretive judgments. In our legal system, judges are constrained by precedent. But that can’t be an absolute constraint. If it were, laws would never be overturned. So how much weight should legal precedent be given? There is no simple answer to this—both conservative and liberal judges are inconsistent regarding the weight of precedent.

Is the text more important than legislative history? Should the purpose of the law be considered? What about contemporary norms and practical considerations of whether the law is workable? What role should moral ideals such as liberty or equality play? Again, the constitution itself doesn’t answer these questions. They can be answered only by each individual judge.

In the end, every judge will use their moral sensibility, life experience, judicial philosophy, and political ideology to interpret the constitution. This is not because they are excessively enthusiastic about their political agenda—it is because there is no alternative. The notion that there is some impartial point of view that considers only the law as written is simple nonsense; and the idea that conservative judges alone occupy this point of view is self-deceptive blather.

In fact Media Matters reports that:

A 2005 study by Yale University law professor Paul Gewirtz and Yale Law School graduate Chad Golder indicated that among Supreme Court justices at that time, those most frequently labeled “conservative” were among the most frequent practitioners of at least one brand of judicial activism — the tendency to strike down statutes passed by Congress. Indeed, Gewirtz and Golder found that Justice Clarence Thomas “was the most inclined” to do so, “voting to invalidate 65.63 percent of those laws.” Those most frequently labeled “liberal” were the least likely to strike down statutes passed by Congress, according to the study.

A recently published study by Cass R. Sunstein (recently named by President Obama to head the White House Office of Information and Regulatory Affairs) and University of Chicago law professor Thomas Miles used a different measurement of judicial activism — the tendency of judges to strike down decisions by federal regulatory agencies. Sunstein and Miles found that by this definition, the Supreme Court’s “conservative” justices were the most likely to engage in “judicial activism,” while the “liberal” justices were most likely to exercise “judicial restraint.”

So during the confirmation hearings when Senator Blowhard raises the specter of “judicial activism” be aware this is code for “liberal idea I don’t like”.