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.”
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.