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Doug Kmiec on judicial empathy
In America Magazine, Doug Kmiec (one of Obama’s famously Catholic supporters) reflects on empathy, “the ability to stand in the other person’s shoes” and how it relates to justice:
[T]o be evenhanded is not the same as being uncaringly formalistic or concerned only with systematic consequences. Real litigants stand before the Court. … Empathy has a wider, more open-minded nature, asking how law interrelates with the larger culture.
Kmiec says, counter to the “strict constructionist” view, that the “plain, public meaning” of the Constitution is hard to find since there were as many diverging opinions in 1787 as there are now. He applies empathy to the issue of Roe v. Wade:
From the standpoint of empathy, is it really likely that if Roe is overturned, the states will criminalize abortion sending predominantly poor women and college co-eds to jail? And if compassion exempts these women from incarceration, what consistent principle then sends the doctors off to prison? …
[E]mpathy reveals the limits of the law and the importance of giving a woman without insurance or the resources needed to sustain herself, the assistance necessary to allow her to complete a pregnancy.
Finally, he says, empathy reveals that the law is no substitute for love:
Yes, it is wrong when the Court usurps legislative function or when it disregards the structure of the Constitution that reserves appropriate questions to the states. Yet it is empathy that gives insight into where exactly no government—federal or state—should be involved. In times past, it may have been possible to count upon church or competing private institutions to maintain this boundary between what is public and what is private, but these independent sources of moral formation have also come to overly rely on the crutch of law’s coercion.
back to top34 Comments to “Doug Kmiec on judicial empathy”
It’s a good thoughtful article.
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You can shortcut through this “thoughtful” analysis by understanding that “empathy” is simply a euphemism for “liberal.”
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The question is more whose empathy is to be applied –
the people’s, through their representatives and through impartial judges applying the laws they write -
or an elite oligarchy’s.
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Evangelicals are more likely than other citizens to support torture, and now they are more likely to oppose empathy. This isn’t because they are unkind people, but because they have an ideological investment in the notion that punishment is the moral fulcrum of the universe.
. . . and they misunderstand the associated meanings of empathy.
Conservatives are in full cry that “empathy” means agreement, regardless of what the law and the Constitution say. On the contrary, “empathy” implies lack of agreement. Empathy is the ability and skill to sense the POV of someone who is different, even contrary. The wonderful thing about skills is that they are cumulative and not at all mutually incompatible. The skill of empathy doesn’t exclude the discipline of impartiality.
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Amphipolis, is your logo a sculpture on the grounds of Winterthur?
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Put me down in the “return the issue to the states” column as far as abortion is concerned. Yes, I’d prefer to see no deliberate killing of unborn innocents (Unborn Innocence!) anywhere in the entire USA
But I’m a political pragmatist too. I cannot imagine NARAL/PPFA being able to buy off as many state legislators with campaign donations as they do Congressmen and Senators.
If the USA had abortion laws as restrictive as the Scandinavian countries, it would be a huge improvemt and many would be spared.
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Scroop Moth
Evangelicals are more likely than other citizens to support torture, and now they are more likely to oppose empathy.
Where do get we supporet Torture?
I don’t know anyone that supports torture!
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It is not the job of the judicial to push empathy! The courts interpret the laws that congress passes, are they constitutional or not? Our congress can pass laws that are empathic and push an agenda. That’s fine! We want laws that help protect people and business. The courts should not be pushing anything! It is not their job!!
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LLOYD:
Here’s the Pew poll that says white Evangelicals are the most likely to support torture:
http://www.usnews.com/blogs/god-and-country/2009/04/30/poll-most-evangelicals-and-catholics-condone-torture-in-some-instances.html
Here’s speculation about Evangelical affinity for penal thinking:
http://www.huffingtonpost.com/valerie-tarico/church-going-and-torture_b_197246.html
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Scroop -
No, it is the Lion of Amphipolis.
Here’s a cool link I just found to illustrate:
http://www.padfield.com/2003/amphipolis.html
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Remember Princess P. and the Democrats knew and proved of the interrogation techniques.
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I knew what Obama was saying when he talked about wanting a justice with empathy. All justices bring their life experiences to the Court, and it informs their judicial opinions to a degree. Obama wants people on the Court who know what it’s like to be black, female, less privileged, and so forth. The law can be cold and heartless, were it not for the justices who recognize it’s effects on ordinary people’s lives.
While conservative Christians are coming down on the side that says empathy is something to be disdained and mocked, I think most American still see it as a good attribute.
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That is cool. Du Pont must have copied the lion for his grounds. That may be a reason for you to visit the gardens some time.
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Anlir,
If you knew any conservative Christian, you would find them caring and compensate.
That is NOT the job of the courts. Their job is to determine if laws are constitutional!
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Empathy is a good trait. It should be considered when making laws. But that is the job of Congress!
We need judges that look at laws in light of the Constitution, Not if they are good or bad laws. If it’s a bad law, go back to Congress to change it. We have a separation of powers! Congress makes the laws, the courts look at them to see it they are constitutional.
Liberals wants the courts to make laws when congress won’t!
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Edwin H Friedman..A Failure of Nerve … Leadership in the Age of the Quick Fix:
“I have consistently found the introduction of the subject of empathy into family, institutional, and community meetings to be reflective of, as well as an effort to induce, a failure of nerve among its leadership.”
“The great myth here is that feeling deeply for others increases their ability to mature and survive; its corollary is that the effort to understand another should take precedence over the endeavor to make one;s own self clear.”
“The focus on empathy rather than responsibility has contributed to a major misorientation in our society about the nature of what is toxic to life itself.”
Feeling for others is not the prime responsibility of leaders (judges, politicians, teachers, parents, etc.). Their responsibility, and their greatest benefit to those they lead, is to know and apply the law, lead the community in the direction they need to go, know a subject and communicate it well, protect and lead their children into quality adulthood.
Leaders who emphasize empathy tend to identify too much with the travail of their followers and lose the focus on their responsibility as leaders to point and move in the right direction regardless of the feelings of the followers. That is what good referees do. They call the game as they see it regardless of the feelings of the players. A good quarterback does the same thing.
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No one is calling for empathy to trump the law. The conservatives are trying to set up a false choice in doing that. It’s just part of their strategy to de-legitimize whatever nominee President Obama puts forward for the Supreme Court.
As others have pointed out, without empathy you would never have had the ruling in Brown vs Board of Ed. The cold facts of the law said “separate but equal” was permissible – desirable even. But empathy saw past that and realized it’s effect on the lives of black people, and ruled otherwise. Not a few conservatives were unhappy with that ruling.
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Scroop -
Thanks for the tip. I live just a few hours from there.
I love those Brandywine Valley mushrooms!
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David L.: You can shortcut through this “thoughtful” analysis by understanding that “empathy” is simply a euphemism for “liberal.”
Well sure… you can shortcut through any argument by assigning an easy label and then dismissing it.
You won’t risk learning something or having to think too hard about your own position that way, so I see the appeal.
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It must be remembered that Obama is a politician. He is the supreme member of the Democratic Party. I’m not saying it’s a bad thing–just pointing it out as a fact. One of the goals of a political party in America is to stack the Supreme Court and the other courts. Both parties do it, and it is only fair and right that they do.
Therefore, it is not part of some evil plot to say that “empathy” is a euphemism for liberal. If it were a Republican president, the word might be “objectivity” or “fidelity to the law.” We would all realize that it meant pro-life, pro-gun, and so on. There is no need to get all high minded and pretend that this is not a big political game in its essentials.
I think “empathy” is a pretty slippery word, because it probably connotes having empathy for criminals and terrorists rather than for their victims. It certainly connotes having “empathy” for pregnant women but not for their unborn children.
I must assert that Brown v Board of Education was not decided based on empathy but on the founding principal in America that all men are created equal. (I realized that it evolved in practice, but it was always there in principle.) Using empathy could just as well have led to support of the Board of Education, since the Supreme Court could have chosen to have empathy for the white racists who wanted to keep schools segregated.
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Anlir, if you don’t think that certain laws are empathetic enough, then get them changed. That’s how it’s done in America, according to the Constitution.
Don’t take a shortcut and use the courts to usurp the Constitutional authority of the Congress.
If you do, then you might live to regret it when Republicans are able to do the same thing in reverse. That is, if we could elect a Republican president and some Republican representantives and senators with some backbone.
You should be thanking your lucky stars that Bush was fairly moderate in his judicial appointments.
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Hmm, for 100 years or so, courts awarded punitive damages to punish serious offenders against civil law. Various state legislatures intervened in various ways to protect poor defenseless corporations from “runaway” juries really ticked off at egregious corporate wrongdoing and devised a variety of formulae for calculating punitive damages.
But only in the last couple of years did a “conservative” Supreme Court overrule not just the judges of all these states, but the legislatures as well and impose its own, mysteriously derived and opaque formula to calculate what is fair.
Talk about judicial activism!
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Most people form their basic “world view” at an early age and then spend the rest of their lives “locking it in” and buttressing it.
Ernest Becker [time for people to start whining about me referring to him because [[sarcasm]] I should be referring to the possibly inaginary figure of Jesus] said that all humans are mortally wounded (in a psychological sense) by their knowledge of their own mortality and spend much of their life trying to deal with it by 1) denying it (hence the title of his most famous book), 2) building something they see as preserving themselves (belief in afterlife) or of value to others in the future (what he called a person’s “immortality project”).
He also said that calling people’s attention to their mortality makes them more hostile to people they see as different or more diligent in ignoring such reminders.
As a consequence: people reading this comment will:
a) stop reading after they see my screen name or after they have read a few words); or
b) respond by telling me that I am all wrong; or
c) respond by flaming me or praying for me or telling me that Jesus loves me (which atheists in turn tend to regard as hostile).
Just saying.
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I remember an appeal where the horribly injured person’s attorney had actually sued the wrong person, so on appeal the court ruled that he had to give the money back. It wasn’t that they had no sympathy or empathy, but you can’t make people who didn’t do the wrong pay the price — that’s what an “empathetic” justice will do. Thankfully, there will be eight others who, hopefully, have a real legal education.
(It’s interesting how someone can be reading a book and take on the words of the author without giving them a second thought. Just sayin’.)
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KYLE : If it were a Republican president, the word might be “objectivity” or “fidelity to the law.”
Thus, Justice Roberts offered himself as an umpire calling the balls and strikes. All an umpire needs is a copy of the rule book, good eyes, a quick mind, lungs of leather, and thick skin.
Obama will give us a different kind of justice. His nominee will be as excruciatingly smart as Roberts, but more cognisant of the Constitution’s failure to control its own interpretation and meaning, and less disingenuous about the role of other human faculties in judicial opinion. What’s reasonable? Enough? Good faith? Fair?
Most cases can be called by good umpires, but a few are hard cases that don’t fit the rule book. They require judgment because they are not pre-determined. Obama is telling us that he doesn’t think “objectivity” is sufficient. He’s right. Life isn’t an afternoon of pitches. Most importantly, the law is about results, not just itself.
One reason conservatives detest empathy on the Supreme Court is that they fear its persuasiveness. All an umpire can do is call the play like he sees it — one vote in nine. Obama’s justice will sway opinion, not just sign off on it.
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I remember an appeal where the horribly injured person’s attorney had actually sued the wrong person, so on appeal the court ruled that he had to give the money back. It wasn’t that they had no sympathy or empathy, but you can’t make people who didn’t do the wrong pay the price — that’s what an “empathetic” justice will do.
How do you figure that (other than simply feeling compelled to denigrate everything Obama says or does?)
Empathy extends to both sides of a dispute. If the injured party deserves some recompense but the convicted party is in fact not the actual party responsible, empathy says that the party wrongly held responsible should be freed of the obligation.
Empathy is not the same as sympathy. Sympathy means simply feeling sorry for someone. Empathy means being able to put yourself in the other person’s shoes. Conservatives seem to, by and large, lack this ability (at least where someone much different from themselves is concerned) and consider it unimportant or even dangerous.
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Empathy is not the deciding factor in the law, SteveG. You are wrong and applying the definition of empathy incorrectly, but that’s the typical liberal thing to do — take a word and redefine it. Empathy is a feeling. So is sympathy. You don’t make a decision based on empathy or sympathy. You make a decision based on legal principles that apply to all, and sometimes that means that an injured party doesn’t win the case. You don’t base a legal decision on feelings. You apply legal principles to the facts.
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Empathy is a feeling.
It’s a skill, actually. Empathy is the ability to see and feel things from the perspective of someone who is different, or of someone with whom you disagree.
Empathy goes a step beyond emotion, toward imagination. (Conservatives won’t like that word, either.) Empathy is the ability to use emotion as a means to understand, to persuade, and to judge.
Conservatives keep wrongly confusing empathy with partiality.
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Disappointing to see Kmiec repeating the old canard about women being sent to jail in pre- Roe v Wade America. He should know better.
Christians and conservatives give a far greater percentage of their income to charities on average than to nonreligious persons and political liberals. That’s empathy with shoe leather.
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God certainly has empathy for us all: “for God so loved the world”
But He never bent the rules… in fact enforced them: “that He gave his only begotten Son”
And accomplished good results that no amount of wise human subjectivity could have: “that whoever believes in Him should not perish but have everlasting life.”
Empathy is an essential part of a quality life. But it is not adequate to be the primary motivator for our actions. It leads juries to acquit OJ’s, and probably lead our nation to invade Iraq. It is a great challenge to wisely and fairly apply the law objectively. Empathy rightly belongs in the lawmaking part of the procedure not in the interpretation.
As for interpreting the gray areas, if empathy is required it should be directed toward the law not the litigants. Empathy for the litigants is the job of the family and friends not the judges.
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This conservative detests empathy in judges because it is taking the legitimate function of the judicial branch of government and exchanging it for something else.
As Fisherman says, empathy is a job for family and friends.
The court’s role is to rule fairly according to the law.
Nobody has yet addressed the fact that having empathy for one side necessarily hurts the other side. If you choose to have empathy for the rapist, you are obviously not providing justice for the rape victim. If you choose to have empathy for big tobacco companies, then you are not showing any concern for those who died from using their vile product.
That’s why empathy is not what a judge needs. It would actually cause him to favor one side over the other based on feelings and opinions rather than on the facts of the case and the relevant points of law.
Liberals, do you really want empathy in judges? What about a judge who feels empathy for an anti-gay bigot and sends two men to jail for indecent behavior for holding hands in public? What about a judge who feels empathy for a wife beater because he had such a bad childhood and refuses to grant a restraining order and charges the police with false arrest? Do you see the problem with empathy, yet?
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KYLE — Are you also against merciful judges?
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Everyone should read the article Alisa linked to.
Kyle, Obama’s mention of empathy was in the context of a Supreme Court Justice. They’re not dealing with the trial, sentencing, etc. They are only concerned with the law and its application.
So I don’t think we need worry that some federal judge is going to go all bleeding-heart and let a convicted felon go free. That’s not at all what Obama was talking about.
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Scroopy, you aren’t supposed to be imagining anything when you are a judge. You are supposed to be taking the facts you have and applying the law to them. When Obama says he wants an “empathetic” judge, he is saying he wants a different kind of judge — one who ignores the law.
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