Last week, President Barack Obama nominated Elena Kagan to replace retiring Justice John Paul Stevens on the Supreme Court. He named many factors in his decision, but he didn’t mention empathy, which sparked controversy in last year’s confirmation of Justice Sonia Sotomayor.
“I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes,” Obama said at a White House press briefing before nominating Sotomayor to replace retired Justice David Souter.
Obama’s critics quickly pounced on the idea of judicial empathy, arguing it leads to the slippery slopes of lawlessness or even mass oppression.
“(Obama wants) the courts to take over and engage in social engineering,” Sean Hannity said on Fox News.
Those attacks were riddled with fallacy and failed to appreciate the merits of empathy. While adherence to established law is a judge’s job, they sometimes encounter cases without legal precedent.
These cases present gray areas in which judges must make independent decisions. Judges who make decisions that are more in touch with the reality of American life can better serve the higher goal of de facto justice. Thus, empathy should be considered when picking judges.
Some contend that empathy leads to excessive judicial activism, which violates the separation of powers of the branches of government.
“Umpires don’t make the rules, they apply them,” Chief Justice John Roberts said during his Supreme Court confirmation hearing.
Life is not as simple as baseball.
“In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon,” then Sen. Obama said when explaining his vote against Robert’s confirmation. “That last mile 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.”
The dangers of myopic and uncompromising observation of established law could be seen in last year’s Supreme Court case Safford Unified School District v. Redding, in which strip search precedents conflicted with real-life privacy concerns.
“It does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude,” Stevens said in the ruling.
By the very nature of the job, there is always some subjectivity in judging. If empathy is not considered when choosing judges, then there may be rulings that do not converge with core American principles. There may have never been a reversal of the separate-but-equal doctrine justifying segregation, for instance.
Because Congress ought to facilitate expression of the country’s ideals, it should ensure Kagan’s capacity for empathy during the confirmation process. There are cases in which it will matter.
Neil Manimala is a junior majoring in biomedical sciences