I don't think Orin Kerr quite gets what Obama means when he says he wants a judge with "empathy". Susan Bandes gives a good rundown of what "empathy" means in this context. The short version is that empathy is the ability to understand exactly how adopting a given legal rule or doctrine will effect litigants and those like them now and in the future.
Empathy isn't something a judge either has or doesn't have. It's a skill, and like most skills it runs on a continuum. The ability to place yourself in the shoes of another and try and imagine what their life will be like if you rule a certain way is difficult, and not everyone has that ability (to the requisite degree we want in a judge). Yet this skill often goes to the heart of the legal function. Far from being "lawless", trying to remove empathy from judging would, I believe, exile law from law.
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Wow, that really is staggering confusion on Mr. Kerr's part. I've just seen people arguing that "empathy" is code for "judicial activism."
(Linked one of your pieces on "Judeo-Christian" in my most recent post - hope you don't mind.)
Well, like most bloggers I hate when people link to me. But I'll let it slide. This time.
Oh, thank goodness.
For some reason, it isn't liking the HTML on my link. Here it is straight up:
http://www.newyorker.com/reporting/2009/05/25/090525fa_fact_toobin?currentPage=1
Profile of John Roberts in the recent New Yorker. It's been making the rounds, so you may have seen it.
Anyway, at his confirmation hearings, Roberts made a big deal of how neutral he would be, about how his job was like that of an umpire, just to apply the rules. I remember distinctly that he said he wouldn't look out for the little guy if the law said the big guy was in the right. The anti-empathy candidate, so to speak.
What has been the result of this type of approach? Here's Toobin on Roberts:
Roberts "reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff."
We could use a little empathy to counter that approach, especially given that Roberts will be applying Bushian standards to the law for several more decades.
Yes, and I think this ties into the need to have some women on the Court. If you're Alito and you've never even thought that you might be getting discriminated against at your job because of your gender, it's hard to understand how implausible it is that someone would know that her paycheck was discriminatory within 6 months of getting it. If you're Alito and you've never even hypothetically considered getting an abortion, it's hard to understand why a law that requires women to inform their husbands before getting an abortion would be in many cases so onerous as to preclude the right to obtain an abortion.
"In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff."
I would be interested in knowing how Toobin divides the major cases from the minor, but I don't really disagree with this description. And note (although I'm not sure what my point is) that you'd never need empathy to come out on the side of these winning parties, since they're all unfeeling institutions.
I disagree with your last point, Joe. And I actually think Obama does too. From the interview Kerr posts--"Now, in some ways it might cut the other way. I want a judge who has a sense of how regulations might affect the businesses in a practical way." This is crucial to having judges make rulings that allow businesses to continue to make money and employ people. The thing is, pretty much all the judges have empathy for the business-owners, since those are the classes they run in.
What we need are justices who can (also) empathize with the many others their rulings affect, which takes imagination, understanding, and an open mind. It might also take having, say, more women or minorities or (god-forbid) a gay person on the Court to help the Justices already there understand the effects their rulings have. But I think the point needs to be made more often--the problem isn't that current Justices don't empathize with any parties, just that they apparently can't empathize with certain ones.
"This is crucial to having judges make rulings that allow businesses to continue to make money and employ people. The thing is, pretty much all the judges have empathy for the business-owners, since those are the classes they run in."
Do we have evidence of this? (e.g. justices in oral argument or in their written opinions referring to the practical difficulties that business owners will encounter) To bring back one of my examples, I don't remember Alito saying in his Ledbetter majority opinion that allowing people to sue for long-ago discrimination would hurt business owners; he insisted that he was just applying the strict letter of the statute. Certainly he might have an unconscious bias in favor of making life easy for business owners, but there's no sign of it in the opinion itself.
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