If you read some of the commentary about the retirement of Justice David Souter, you’d think that Barack Obama committed an atrocity by simply saying he wants a judge with empathy. EMPATHY? The far right hates the term, perhaps because it means you try to understand the situation and circumstances of others, different from yourself. They claim this is code for “activist judge” or even “pro-choice.”
They also claim that the law is somehow not to be read with any consideration of the human side of a legal action. It’s purely “constitutional” meaning you use reason to determine the proper meaning of the law, and then apply it regardless of the consequences to the people involved. The law is the law, after all.
The problem with that argument is that it seems to suggest that justices do not need wisdom, just knowledge. Laws are made by people to deal with human situations. The people making the laws, and the situations they entail, become relevant in large part because of how people react to situations emotionally. To pretend that once the law is put in the books it then becomes something to which emotion is absent is ridiculous — emotion and human experience are part and parcel of every law and every human activity.
Moreover, the reason some people distrust emotion is that it can be misleading. Let’s say you get an e-mail from a friend that seems to accuse you of something. Rather than analyze the claim and consider the motives, you might suddenly get emotional and angry at the friend. You then shoot back an angry e-mail which causes him or her to get upset, especially if the original e-mail wasn’t meant maliciously. Pretty soon mutual emotions can cause animosity and unnecessary anger. Whether in personal relationships, business deals, or foreign policy, misguided emotion can create dangerous errors of judgement.
Empathy, though, doesn’t do that. Empathy in fact is an emotion which provides wisdom. It allows one to better understand the true nature of a situation by not only categorizing it intellectually, but assessing the emotional state of those involved. Empathy also doesn’t mean surrender. When I put my six year old in time out I often empathize with his frustration at not being able to do what he wants. To him many rules make no sense, he doesn’t understand how dangerous some things are, or the kind of damage certain actions can cause. I empathize. I realize that it seems unfair to him, I understand the voice saying “dadddyyy” as he looks at me wondering why his loving daddy is punishing him.
But, as supernanny would note, the “naughty chair” doesn’t work if not implemented with consistency and rules such as not talking after explaining why the child is there, and not giving in to feelings of guilt for causing emotional distress to the child. Still, empathy helps keep anger in check. I think that parents who don’t empathize have a harder time not exploding when their child yells, screams, or gets off the naughty chair for the tenth time. Empathy provides understanding and actually makes it easier for me to provide effective discipline without losing my cool or giving up.
Empathy may be good for dealing with children, but on the court? I’d argue yes. If the exercise of making legal judgements only involves an intellectual activity, whereby the facts of the case and the law inexorably drive towards one conclusion, we don’t need judges, we need robots. We need computers into which we can feed releavant data, and which will give us the proper verdict or ruling. After all, no matter how learned a justice is, you can put a lot more information in a computer data base!
Or could it be that the law is not merely an intellectual exercise, or a formula to determine what the facts are. Perhaps the facts themselves are a mix of objective phenomena and human situations. After all, the makers of a law may have had one thing in mind, never intending the law to have an inadvertant side effect of harming people in an unexpected condition. Perhaps the unexpected condition is such where a breach of the law was unavoidable or unintended. Perhaps the breach is in fact no harm to society and there is no risk in letting it go unpunished. Perhaps strict adherence to pure legality would itself be irrational, not taking into account the complexity and uncertainties of social structures.
If that is the case — if the law is not purely intellectual and formulaic, then what more do we need then a computer? It can’t be simple emotion — anger for vengence, disgust at violations of ones’ own moral code, and other sorts of reactions may do more harm than good — it may replace the formula with raw subjective bias, rendering a result that is even worse. If however the emotion is empathy, combining with reason, and not getting lost in anger or despair, the result is wisdom.
Wisdom is more than intellectual application of rules. It is more than just knowledge. Wisdom is knowledge plus empathy, it’s understanding the reality of a situation, and responding in ways that take the people’s state of mind and emotion into account.
This is clear in the account of King Solomon, who in the Bible has a dispute brought to him. Two women claim to be the mother of a baby, each has a compelling case. Solomon then orders the baby to be cut in half, with each mother getting a half of the child. One of the women suddenly gives in, and says that it’s better for the other woman to have the child then to have it killed. Solomon then awarded the child to that woman — she cared more about the child’s life than her claim on the child. That wasn’t application of an intellectual formula, that was empathy of the human condition, and wisdom.
So yes, I want empathy. I don’t want judicial activism or a litmus test on abortion, if the word “empathy” is a code, I don’t want the code. I want the real thing, a justice with knowledge of the law, empathy and wisdom.