The Magazine

The Problem with Judicial Empathy

What will constrain judges once they turn to their hearts for guidance?

Jun 8, 2009, Vol. 14, No. 36 • By TERRY EASTLAND
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Obama's own Justice Department also found shortcomings in the panel's opinion. In a friend-of-the-court brief, the solicitor general said the opinion did not "adequately consider whether, viewing the evidence in the light most favorable to [the plaintiff firefighters], a genuine issue of fact remained" as to whether New Haven's "claimed purpose to comply with Title VII was a pretext for intentional racial discrimination in violation of Title VII or the Equal Protection Clause." The brief concluded that the Supreme Court should vacate the judgment and remand the case for "further consideration": in other words, for the kind of honing-in that should have been demanded by Sotomayor's panel.

As for the second quality Obama sees in his nominee, "recognition of the limits of the judicial role," he defined it as "an understanding that a judge's job is to interpret, not make law, to approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent and a determination to faithfully apply the law to the facts at hand."

Obama seemed to be channeling Republican presidents from Richard Nixon to George W. Bush who have insisted on a limited role for the courts. But Obama's insistence on judicial modesty doesn't apply in every case. Obama said that there are times when "we need something more." And, when it is invoked, that "something more"--which Obama explained in terms of the third quality, "experience"--will swallow up judicial restraint, with judges no longer interpreting the law but making it.

So Obama is for a limited role for the courts but also for the courts to abandon that role. But when, for Obama, may a court decide to do that?

Obama has said that legal process will dispose of 95 percent of cases but that it is unable to "lead you to a rule of decision" in the remaining 5 percent. He gives examples of these "truly difficult" cases:

whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled.

Decisions in such cases, he says, "can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy."

Obama has spoken often about empathy. His campaign, in a sense, was premised on getting the country to overcome what he called its "empathy deficit," meaning a country with a politics that has been insufficiently egalitarian and socially liberal. He promised to change that and would have the courts pursue the same mission through a jurisprudence of empathy. This is a blatantly political understanding of the role of the courts, at odds with the concept of a government of separated powers provided for in the Constitution. The grounds for decision under a jurisprudence of empathy come not from legal materials but the kind of considerations only a legislature may properly take into account.

It is hard to overstate how important "empathy" is to how Obama thinks about the task of judging. He explained in 2007 that he voted against John Roberts after having found him deficient on his empathy index. He picked Sotomayor having found her sufficient.

Oddly, in introducing her, Obama never once mentioned "empathy." It was as though the word had been struck from his dictionary. Nor did Sotomayor use it. Instead, Obama heralded "experience" as "a necessary ingredient in the kind of justice we need on the Supreme Court." And Sotomayor worked that talking point, relating "the wealth of experiences, personal and professional" that have shaped her career as a lawyer and her approach to judging.