Empathetic Judging and the Rule of Law
This short essay addresses the contention that empathy in judging is inconsistent with the rule of law. It first argues that empathy, defined as the ability to take the perspective of another, is an essential judicial attribute. Some of those who argue against empathy are in fact taking issue with the notion of sympathy for particular litigants or classes of litigants. Empathy aids a judge in grasping the stakes for all the litigants. However, it does not help resolve whose claims should prevail. The essay then explores the more difficult question that follows: if empathy for all litigants is desirable, does President Obama’s expressed desire to appoint judges with “the empathy to recognize what it’s like to be a young teenage mom” and empathy for other historically disadvantaged groups conflict with rule of law values? Obama’s remarks can be interpreted as a direct challenge to a particular conception of the rule of law - the notion of the judge as umpire who approaches legal issues with no preconceptions. As the “pop quiz” that begins the article illustrates, judges routinely exercise empathy for particular groups, finding some perspectives more accessible than others. This sort of selective empathy can be ameliorated, to an extent, by judges who are aware of their own blind spots and the limits of individual perspective. More effectively, it can be addressed by aiming for a Court with a range of backgrounds and life experiences. Supreme Court justices, like the rest of us, make better decisions in an atmosphere of lively debate than in an echo chamber.
Susan A. Bandes, Empathetic Judging and the Rule of Law, 2009 Cardozo L. Rev. De Novo 133 (2009).