In favor of the empathy standard for choosing judges

Behind Justice's Blindfold, By Ruth Marcus
WaPo, Wednesday, May 6, 2009

Should the judge be an umpire or an empathizer?

Chief Justice John Roberts memorably likened the judge to a baseball umpire, dispassionately applying existing rules to call balls and strikes.

President Obama is more, well, touchy-feely. As he weighs a replacement for retiring Justice David Souter, the president said, he wants "someone who understands that justice isn't about some abstract legal theory or footnote in a case book; it is also about how our laws affect the daily realities of people's lives." That "quality of empathy," he said, is "an essential ingredient for arriving at just decisions and outcomes."

This is red-alert talk for conservatives. "Those are all code words for an activist judge who is going to . . . be partisan on the bench," Utah Republican Sen. Orrin Hatch warned on ABC's "This Week."

Even before the election, Northwestern University law professor Steven Calabresi, a co-founder of the Federalist Society, was already at Defcon 4. In a Wall Street Journal op-ed, he argued that Obama's "emphasis on empathy in essence requires the appointment of judges committed in advance to violating" the judicial oath to do equal justice to rich and poor. "To the traditional view of justice as a blindfolded person weighing legal claims fairly on a scale, he wants to tear the blindfold off, so the judge can rule for the party he empathizes with most."

I admit to a bit of wincing at the word "empathize," with its sensitive-new-age-guy aura. If I thought Obama was advocating a pick-your-favorite-side approach, I'd be on the barricades, too. But his position is not anything like this absurd caricature. Indeed, it reflects a more thoughtful, more nuanced understanding of the judicial role than Roberts's seductive but flawed umpire analogy.

Like its downscale cousin, the dictate that judges should "interpret the law, not legislate from the bench," the judge-as-umpire trope is fundamentally misleading. Of course judges are supposed to be neutral arbiters of the cases that come before them, ruling on the merits of the claims rather than the sympathy evoked by one party or the other. Of course judges are bound by the text of legislation, the words of the Constitution, the weight of precedent.

Yet if the right answer was always available to a judge who merely thinks hard enough, we could program powerful computers to fulfill the judicial function. That's not possible -- not, anyway, in the cases that matter most. Those inevitably call on the judge to bring to the task his -- or her -- life experiences, conception of the role of the courts and, as Obama put it, "broader vision of what America should be."

Obama's most controversial formulation of the empathy argument came in a 2007 speech to Planned Parenthood. "The issues that come before the court are not sport," he said, disputing the umpire approach. "They're life and death. And we need somebody who's got . . . the empathy to recognize what it's like to be a young, teenage mom; the empathy to understand what it's like to be poor or African American or gay or disabled or old."

Possessing the "empathy to recognize" should not determine the outcome of a case, but it should inform the judge's approach. All judges are guided to some extent, consciously or unknowingly, by their life experience. The late Justice Lewis Powell, the deciding vote in Bowers v. Hardwick, the 1986 case upholding Georgia's sodomy law, told fellow justices -- and even a gay law clerk during that very term -- that he had "never met a homosexual." Would the outcome of Bowers -- an outcome Powell regretted within a few months -- have been different if the justice had known men and women in same-sex relationships?

When Bowers was overruled in 2003, the majority opinion by Justice Anthony Kennedy was infused with a greater understanding that anti-sodomy laws "seek to control a personal relationship." You got the sense that Kennedy actually knew people in such relationships.
And empathy runs both ways. In 2007, when the court rejected Lilly Ledbetter's pay discrimination lawsuit because she had waited too long to complain about her lower salary, the five-justice majority seemed moved by concern for employers unable to defend themselves against allegations of discrimination that allegedly occurred years earlier.

Justice's blindfold is a useful metaphor for impartiality. It's not a fixed prescription for insensitivity, or for obliviousness to the real world swirling outside the arid confines of the courthouse.