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May 30, 2009

On Empathy & Judge Sotomayor

On the ASBH_Lit&Med listserv, Rebecca Garden solicited views on the flap over Judge Sonia Sotomayor's apparently shocking admission that she views her capacity for empathy as a strong suit of her judicial temperament.  This has provoked controversy.  My comments:

As a lawyer and a medical humanist, it has been difficult for me to make any sense of the certitude with which so many commentators and legal scholars seem to profess that empathy has no basis in judicial decisionmaking.  Such an idea seems so absurd to me I would barely know where to begin critiquing it, although that has never stopped me before.

Several substantive points leap to mind: first, the disdain for the role of empathy in political, moral, and juridical decision-making ought to be situated in context of the general modern emphasis on impartiality and rationalism, and more specifically, in the continued influence of the Langdellian legal formalists (see especially John Austin, not the philosopher of language, but the jurisprudential theorist).  In the latter tradition, it is the rules and principles of decision-making that ought to produce the results, and while their ideas have been mercilessly critiqued, one need look no further than the role the hermeneutics of textualism and originalism play in legal theory and in actual judges' professed methods of decision-making to see its continued influence.

Second, I think the feminist critique of this tradition of impartiality arising from care ethics (in particular, I am thinking of Virginia Held's powerful work on this subject, as well as Alison Jaggar) might be applicable to the notion that empathy has no place in virtuous decision-making.

And third, as suggested by the above, I think the aretaic tradition, and especially the emphasis on phronesis, might provide an excellent theoretical bulwark for arguing that empathy is a crucial component of practically wise and virtuous decision-making.  For those interested, Larry Solum has an extensive research agenda on the idea of a virtue jurisprudence.

Anyway, it has been somewhat disheartening to me to see how many professionals and scholars seem to accept without reflection the meme that empathy has nothing to do with virtuous legal practices and with the conditions for human flourishing, but it reminds me yet again how much I think there is to be gained by suggesting we actively look to the historical humanists as role models.  (I think I am on relatively safe ground in suggesting that for many of the Renaissance humanists, and especially, say, Montaigne, the idea that we can make virtuous legal decisions in the absence of empathy would be absurd.  Montaigne, of course, had extensive legal training and served as a judge for many years.  There is some excellent work connecting all of these themes -- virtue, justice, empathy -- as to Montaigne's life).



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In fairness, we should consider the arguments against the judge.

Thanks for your insightful comments, as always. On another aspect of the attacks against Sotomayor, and although my knowledge of legal matters is about nil, I was quite surprised to see the reaction to her off-hand comment that policy was made in appeals courts. First, I think that listening to it in context (available through C-SPAN) puts it in perspective; but more generally, I think that there is some obvious validity to her claim -de facto if not de jure. To try and tie this in somewhat with your post, I wonder if the notion of empathy is perceived as restricted to the executive and/or legislative branches in democracies, as opposed to the judicial. An interesting twist on the origins of rhetoric?

Hey Francois,

IMO, few legal scholars of any stripe would deny that judges make policy. This basic and virtually undeniable fact is partly what makes the term "judicial activism" basically meaningless, since common law is absolutely a policy-making endeavor.

(I should disclosure that I have done some work in jurisprudence and legal hermeneutics, though not recently).

As to whether empathy is more properly deemed a feature of executive and legislative branches, perhaps so, although, if the idea of rule-following is perceived to be one in which empathy has no place, there is reason to suspect it could only be uncomfortably situated in the legislative body. (In which, like courts, procedure is extremely important).

That's a half-baked response to a good question, but there is also a nice scholarship on the importance and risk of using stories to animate public policy. I shudder at the thought of public health policy enacted without regard for narratives, but I am also well aware of the legislative disasters (e.g., EMTALA) that have come about from laws enacted almost wholly on the basis of such stories.

You may be interested in my post on the subject at Ratio Juris (among other things, I have links to a handful of posts from those in the legal world who *do* find an indispensable role for empathy: http://ratiojuris.blogspot.com/2009/05/empathy-law.html

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