The controversy over President Obama’s search for an empathetic Supreme Court judge continues to rage on, with many people arguing that empathy has no place in our justice system.

It all started when Obama announced that he intends to replace Justice Souter with someone who understands that “justice isn’t about some abstract legal theory or footnote in a case book” but rather about “how our laws affect the daily realities of people’s lives.” Here’s the sentence that landed him in the fire:

I view that quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.

At this point, numerous conservative leaders have taken high-profile stands against empathy in the courtroom, including Republican National Committee chairman Michael Steele, Sen. Orrin Hatch (R-Utah), and John Yoo (the former Justice Department official who drafted the torture memos during the Bush administration).

To me, the most disturbing aspect of the anti-empathy argument is the claim that it’s impossible to simultaneously feel empathy for multiple parties in a conflict. Wendy Long, the legal counsel to the Judicial Confirmation Network, told Fox News, “If you have empathy for both sides then that’s the same as having no empathy at all.”

For real?

The world would be frighteningly bleak if empathy actually canceled out in this way. The fact that empathy doesn’t cancel out seems foundational to the pain and beauty of life in community.

When two children are fighting, empathy for both sides is what allows a parent to mediate with an eye to reducing harm overall. And in the struggle against domestic violence, empathy for both sides — or in other words, the ability to recognize the humanity, woundedness, and potential for good in all the parties involved — is what enables anti-rape groups to set up functional rehabilitation groups for abusers, even as they channel the rage and pain felt by survivors of abuse.

The harm reduction approach to drug users offers an inspiring model of what empathy-based justice can look like: it calls us to reduce the pain and damage to all parties rather than siding with some and punishing others.

I spent a summer observing custody and domestic violence cases at the Philadelphia Family Court, and it’s clear to me how positive it would be to have empathetic judges in a setting like that. The judges were constantly ruling on ambiguous questions like whether a person was in imminent danger or whether a person was fit to be a parent. They would have reduced more harm if they had actively sought to empathize with all the different parties that came before them. As it was, it seemed that they unconsciously gave more credence to the litigants who were more familiar to them — litigants who looked and talked the most like them — while claiming total impartiality.

Envisioning what empathy would mean at the Supreme Court level is more complicated, since the court is ruling so specifically on the constitutionality of specific policies or actions, rather than on messy family affairs. I haven’t totally worked it out.

I think Ed Brayton is right that on some level the controversy over empathy boils down to the split between formalism and legal realism. The anti-empathy and pro-empathy camps fundamentally disagree about whether it is possible for judges to truly leave behind their values and ideas when they walk to the bench. Formalists think this sort of true objectivity is possible, whereas realists understand that we never really leave ourselves behind. If we acknowledge that judges are imperfect human beings rather than legal machines, it makes sense that empathy — the ability to step into people’s shoes on both sides of the conflict — could force them to consider and reconsider the grounds for their decisions.

Dahlia Lithwick captured this idea well in her piece on Slate:

Empathy means being impartial toward all litigants without being blind to the consequences of your decisions … judging requires acts of judgment beyond the mechanical application of law to facts…. Empathy isn’t sloppy sentiment. It’s not ideology. It’s just a check against the smug certainty that everyone else is sloppy and sentimental while you yourself are a flawless constitutional microcomputer.

Lithwick is on the right track, but it seems like empathy plays an even bigger role than she suggests: empathy is the capacity that makes justices capable of recognizing whole new groups of people as subjects under the law.

Empathy was the precondition that enabled a group of white judges to recognize the injustice of segregation and the denial of voting rights to black people. And empathy is the quality that may someday lead the court to see military detainees as fully human and therefore as deserving of basic protections under the law.

It’s strange that right-wing anti-abortion groups are attacking Obama’s call for empathy, seeing as their case relies on a call for us to empathize with fetuses and thus treat them as humans and extend rights to them.

Abortion is a prime case in which multiple conflicting empathies can coexist. Just watch Paula Kamen’s brilliant play about Jane (the underground abortion service that operated from 1969 to 1973 in Chicago): it includes a moving scene (based on a real interview) with a member of the collective who felt that she really was killing babies but decided she must continue to do so to keep desperate women from suffering and dying due to unsafe abortions.

Just like the Jane member, a judge can simultaneously feel empathy for a fetus and empathy for a woman whose society denies her power over her own body. The two empathies neither cancel each other out nor settle a court case. But judges who are able to experience these conflicting empathies are sure to approach the issue of reproductive rights with a sense of the true weight of their decisions.