In Defense of Judicial Empathy

Abstract

President Obama has repeatedly stated that he views a capacity for empathy as an essential attribute of a good judge. And conservatives have heaped mountains of scorn upon him for saying so—accusing him of expressing open contempt for the rule of law. To date, the debate has been surprisingly one-sided. One federal judge has recently noted that “President Obama’s statement that judges should have ‘empathy’ was met with strong criticism from his opponents and uncomfortable silence from his supporters.” This Article seeks to offer a sustained defense of the President’s call for empathy in judging. Its argument is neither grounded in extralegal, touchy-feely notions of humanity and compassion nor based on some sort of radical vision of wealth redistribution through activist courts. Nor does it spring from a post-Realist rejection of “law” as a legitimate constraining force on judges. Quite to the contrary, the argument is grounded in a firm commitment to the rule of law and a deep-seated appreciation of—rather than rejection of—legal doctrine. Legal doctrine is permeated with reasonableness and balancing tests and other doctrinal mechanisms that cannot possibly be employed effectively unless judges are able to gain an empathic appreciation of the case from the perspective of all of the litigants. A judge can neither craft nor employ legal doctrine competently if she is not willing and able to understand the perspectives of, and the burdens upon, all of the parties. A judge who believes in the popular portrait of judges as umpires, and who rejects as illegitimate calls for judicial empathy, will fail to realize that, while she thinks that she is simply calling objective balls and strikes, she is in fact unwittingly giving disproportionate weight in her doctrinal calculus to the interests of those whose perspectives come most naturally to her. By contrast, a judge who has a talent for empathy and makes a conscious effort to empathize with all parties will not subconsciously undervalue the interests of those whose perspectives she does not instinctively appreciate. As such, far from being the enemy of judicial neutrality, empathy is in fact necessary to impartial judging.

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