Charles Grassley, who has somehow been elected a United States Senator,quakes in fear at the prospect of a judge who is able to feel empathy:
President Obama said that he would nominate judges based on their ability to “empathize” in general and with certain groups in particular. This “empathy” standard is troubling to me. In fact, I’m concerned that judging based on ’empathy” is really just legislating from the bench.
The Constitution requires that judges be free from personal politics, feelings and preferences. President Obama’s “empathy” standard appears to encourage judges to make use of their personal politics, feelings and preferences. This is contrary to what most of us understand to be the role of the judiciary.
It should be noted here that Obama did not say he would nominate judges based on their ability to empathize “with certain groups in particular”, unless by certain groups Grassley refers to ordinary people. But let that pass.
Of course Grassley is just grandstanding, mindlessly repeating a meme that has so far failed to spread, and will most likely not spread. But let’s for the sake of discussion, examine the point.
First let’s examine the meaning of the word, and I know this is tiresome for Republicans, who, like Humpty Dumpty, like to make words mean whatever they say. But if we insist on letting the word mean what it actually means, it means this:
Identification with and understanding of another’s situation, feelings, and motives.
In a nutshell, a person able to empathize is one who is able to walk in another’s shoes. I would argue that it is impossible to be a good judge without being able to empathize. It’s certainly impossible to be a good lawyer, or at least a good litigator. The job requires an ability to see both sides (or all sides) of an argument-to put yourself in the place of another and try to see things from their point of view. It’s necessary for a lot of practical reasons. If you can’t do it, you can’t anticipate the other guy’s arguments. If you can’t empathize, you can’t advocate well for a client, who might have problems and life experiences totally foreign to your own. And if you can’t empathize, and you’re a privileged white male such as John Roberts, you can’t understand the perspective of the individual as opposed to the corporations which are the sole entities with which you can relate.
Grassley seems to believe that there really is such a thing as the “law”, which can be applied mechanistically. If that were the case, we could replace judges with computers. Justice Holmes wrote that “The life of the law has not been logic ; it has been experience.” That experience should include other’s experiences, which we cannot appreciate without empathy. Judges are called judges for a reason; they are supposed to exercise good judgment, and that requires empathy.
Of course, in reality, Grassley has no objection to empathy. He has no problem with a judge that can empathize, it’s just that he has a problem with the people with whom he’s afraid Sotomayor will empathize.
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