On Empathy

by publius

The notion of "empathy" has been taking a beating over the past few weeks.  And to be honest, it's not the most compelling political message -- as evidenced by Sotomayor's decision to distance herself from "empathy" at the hearing yesterday.  And while I concede that the linguistic framing could be better, let me try to take a stab at defending Obama's larger point about empathy. 

The main point to remember is that Obama's "empathy" is not so much a positive vision of progressivism, but instead a critique of conservative jurisprudence (a topic upon which he has legitimate expertise).  Specifically, I think "empathy" is better understood as two distinct types of attacks on conservative jurisprudence:

The first is a higher-level theoretical attack.  Two of the main conservative schools of thought today -- originialism and textualism -- assume that consequences are generally irrelevant.  Law is the law, and how law affects the outside world is someone else's problem.  This conceit is particularly strong in originalism, which interprets constitutional text as it was understood at the time -- consequences be damned.

The reality, of course, is much different.  It's no accident that originalism tends to align with modern conservative political preferences (with occasional, but fairly rare exceptions).  For instance, the Bill of Rights is obsessed with strong criminal procedural rights.  But Republican judges aren't exactly known for their devotion to the procedural rights of the accused. 

In short, originalism often masks policy preferences behind a cloak of "this is what the law says."  In this respect, Obama's "empathy" comment simply makes explicit what originalism tries to hide -- that is, we should pay attention to consequences.

The second sense in which "empathy" is an attack on conservative jurisprudence is less theoretical.  It's an attack on conservative judges' tendency to rule for business and the state, at the expense of employees, the environment, and the criminally accused.  To me, Obama was essentially saying that he wants judges who focus more specifically on how our courts' decisions affect these specific individuals.

There are a million different indeterminate areas of the law where multiple plausible outcomes exist.  And so if you've lived in a bubble world where the reality of discrimination, or harsh drug laws, or mountain top mining has never affected you personally, that isolation will necessarily (and even epistemically) influence your decision at these various points of indeterminacy.  If, however, you know these realities more viscerally (i.e., if you have "empathy"), then that too will influence your decision the other way.

To me, Obama was simply saying that courts have been coming down too often on the side of businesses and the state in recent years, while ignoring the real-world effects of those decisions on parties with less power and less political influence.

[One sidenote -- I'm still in denial about Hilzoy, but will give her a proper farewell later this week, if I can bear it.]

Comments

[Yarrow]

One sidenote -- I'm still in denial about Hilzoy, but will give her a proper farewell later this week, if I can bear it.

How could you possibly bear it?

Surely we can persuade the Senate to pass a bill either (1) funding the F22 if Hilzoy quits, or (2) extending Medicare to everyone if she stays?

[cleek]

agreed.

and for context, here's the context of Obama's "empathy" remark.

[Point]

"Obama's "empathy" comment simply makes explicit what originalism tries to hide -- that is, we should pay attention to consequences."

On this point, I give an enthusiastic hear-hear.

"It's an attack on conservative judges' tendency to rule for business and the state, at the expense of employees, the environment, and the criminally accused. To me, Obama was essentially saying that he wants judges who focus more specifically on how our courts' decisions affect these specific individuals."

I'm a little less enthusiastic on this point -- without getting into too much detail, I can just say that more often than not the law (as passed by the legislature) is itself is biased in favor of business or the state. The ultimate task of limiting the influence of these powerful actors lay with the voting public.

[Bernard Yomtov]

I think Mark Kleiman addressed the empathy issue very well here.

Kleiman's basic point is

So that's what "empathy" means in a judge: the cognitive capacity to put oneself in the position of someone differently situated, rather than taking what used to be called the "reasonable man" standard to refer to someone just like the judge and his rich, white, male friends. It's not a license to cheat.

In other words, it's a help in understanding the facts of the case. Since understanding the facts is fairly important, it seems that attributes that help a judge understand them are desirable.

[kid bitzer]

i think this needs to be disentangled a bit:

"in originalism, which interprets constitutional text as it was understood at the time -- consequences be damned.

The reality, of course, is much different. It's no accident that originalism tends to align with modern conservative political preferences (with occasional, but fairly rare exceptions). For instance, the Bill of Rights is obsessed with strong criminal procedural rights. But Republican judges aren't exactly known for their devotion to the procedural rights of the accused."

i think this confuses two complaints:
1) that originalism is not practiced consistently or honestly. this is your point about the discrepancy btw. the bill o' rights **actual** strong emphasis on rights of the accused, and the dismissal of these rights by many conservative judges who **claim** to be originalist. when the text as it was understood at the time--as providing broad rights for the accused--collides with their policy preferences, then they immediately disregard the text, thus showing that their alleged commitment to originalism is just a pretense.

2) different complaint: originalism, even if practiced consistently and scrupulously (as it never in fact is) would be unwisely blind to consequences. the best jurisprudence tempers its respect for tradition with a sensitivity to consequences. originalism cannot do that.

so the first is a complaint, not about originalism itself, but about its misuse and misapplication, and about the political mischief that flies it as a flag of convenience. the second is a complaint about originalism itself.

another thing that you might want to make clearer is that in this line:

"It's no accident that originalism tends to align with modern conservative political preferences"

you are not talking about honest, scrupulously applied originalism. you are talking about "originalism", i.e. the fig-leaf for right-wing policy preferences.

but that means that you are not using "originalism" in that line in the way you just used it in the previous line, when you defined it as "the text as it was understood at the time." after all, you then want to deny that "the text as it was understood at the time" really does "tend to align with" right wing ideology, e.g. on the rights of the accused. maybe worth putting scare-quotes around "originalism" in the second line?

as it is written, it sounds like you are saying that "the text" really **does** align with modern right-wing policy preferences. that is not a concession that you need to make here (and not one i would make anywhere).

[Hogan]

Republicans also assume that empathy can be extended to only one person at a time ("empathy for one party is bias against another"). People who have actually, you know, experienced empathy are well aware that it's possible to empathize with both parties.

[russell]

To attempt a paraphrase:

People were not made for the law, but the law for people.

IMO any school of interpretation that ignores consequences has lost that insight.

[Adam Collyer]

"In other words, it's a help in understanding the facts of the case. Since understanding the facts is fairly important, it seems that attributes that help a judge understand them are desirable."

This was a topic of substantial discussion during a seminar I attended several weeks ago with a high level state judge. He was also Latino immigrant from the South Bronx who grew up with minimal material possessions and wealth.

Several years prior, this judge heard an appeal from a young couple who was in danger of losing their children to child services. The young couple had been having some problems, and when child services had come to their apartment and opened the door, they found garbage bags strewn all over the house. The child services and family law people took one look at the "conditions" and decided the couple was living in total squalor, and petitioned the court to take away the children. I believe the request was originally granted.

When this judge oversaw the case, he asked the young couple their side of the story. They replied that they were in the process of moving at the time of the visit, and that since they could not afford luggage or a moving company that they had placed their belongings in garbage bags. Evidently they had plenty of those.

Of course, none of the prior child services personnel, attorneys, or judges had believed the couple's version of the story - after all, "Everyone can afford cheap luggage!" But considering the judge had grown up in a similar neighborhood and similar circumstances, he understood that it was not out of the ordinary at all for a young couple in their circumstances to only be able to move things in trash bags. Why? Because his family had done the same thing. He followed that by saying that if we start taking away people's children because they can't afford luggage and we don't like the look of what they choose to move with, then (1) the state is going to have far too many children to take care of, and (2) he would have never have been able to stay with his parents when he was growing up.

Empathy isn't about "feeling bad" for "guilty" people (whatever that means). It's about having a real context to understanding other people's problems and realizing that upper middle class/white/male isn't the default setting. I agree that originalism and textualism are very process oriented. I think empathy, when defined by it's opponents, is considered too "people oriented." That'd be true if we were just making decisions on our own feelings about others personally. But the truth is that the law needs to take process and consequences into account in order to achieve justice.

[John Thullen]

If Dick Cheney is convicted and appeals his sentence all the way to the Supreme Court, will he throw himself on the mercy of the Court, or will he throw himself upon the empathy of the Court?

Will Justices Roberts, Thomas, Scalia, and Alito discover empathy in their (various, but how can something so rigid and literal also be various?) philosophies of original intent, or will they instead discover in the Founders' original intentions that they and Dick Cheney shall stick together as conservative Republicans then, now, and forever.

[Brett Bellmore]

"But considering the judge had grown up in a similar neighborhood and similar circumstances, he understood that it was not out of the ordinary at all for a young couple in their circumstances to only be able to move things in trash bags. Why? Because his family had done the same thing."

I've done the same, and aside from my time in college, would never have been considered poor. We're not talking about lack of empathy with the poor here, we're talking lack of empathy with the non-well off.

[Neil S.]

" For instance, the Bill of Rights is obsessed with strong criminal procedural rights. But Republican judges aren't exactly known for their devotion to the procedural rights of the accused. "

Do you care to back that up or just do you want to throw it out there. My impression of Justice Scalia, to name one republican judge, is that he is rather hawkish on the procedural rights of the accused. For instance, he penned Crawford v. Washington.

[The Crafty Trilobite]

Adam, that's a great example, thanks.

My favorite "empathy" case from my appellate clerkship:

A young lady was to be deported by the INS. She was an Eritrean national with a U.S. criminal record. Case closed, said the INS judge, the INS appeal board, and the federal district court.

Wait, said one judge at the federal appeals court, not so fast. She was moved to the U.S. at age 3 months. Her parents had always told her she was a citizen, but it turned out they had gotten something wrong in the application process -- so she personally reapplied two years before her 'criminal record' existed. The INS sat on the application.

And that criminal record? A 2-month suspended sentence for technical participation in a theft: she had allowed a customer to pay without a credit card in hand, using what turned out to be a fake credit card number. The shop owner had apparently never wanted to have her arrested, but the insurance company required a police report.

It was a summer job -- she was 16. Her juvenile record was supposed to be sealed and eventually expunged. Some helpful soul at the police records department had taken it upon himself to illegally mail the file to the INS. Anonymously.

IOW, the INS was about to kick into a war zone a teenage girl who did not even speak the language and had no remaining family there, based on illegally obtained evidence, because someone had conned her at the cash register at her first job.

Now, why it took a black judge to grasp that this was evil, and to stretch the law a tad to reverse the INS, I still do not understand. But it did.

People were not made for the law, but the law for people.

IMO, legislators tend to assume that all laws will be interpreted and applied with a modicum of common sense and humanity. that is, or used to be, part of a judge's job. Justice Scalia's famed dedication to "rule of law" all too often looks more like "never give a sucker an even break."

[Roger Moore]

Empathy isn't about "feeling bad" for "guilty" people (whatever that means). It's about having a real context to understanding other people's problems and realizing that upper middle class/white/male isn't the default setting.

And I think that's exactly why the anti-empathy people don't like it. They think that "privileged straight white Christian male" should be the default setting. Even worse, many of them think it's role of government to enforce the that default setting on everyone else.

[cleek]

They think that "privileged straight white Christian male" should be the default setting.

at the same time we're told that the Christian white male is under attack from all sides: from non-Christians; from non-whites; from women. and in that context, "empathy" means unfairly helping people who want to subjugate the Christian white male.

[Sebastian]

"Two of the main conservative schools of thought today -- originialism and textualism -- assume that consequences are generally irrelevant. Law is the law, and how law affects the outside world is someone else's problem."

Argh, I'm a lot more ok with empathy in judging than I am with your defense of it. Adam's example is great. It helps you understand the facts of the case so you can apply the law better. I'm all for that.

I'm decidely NOT for your version of empathy--which seems to want to change the law itself because you want better outcomes.

That is why we bother with legislators. If all we wanted was to be sensitive to outcomes we'd let judges make the decisions all the time.

"The second sense in which "empathy" is an attack on conservative jurisprudence is less theoretical. It's an attack on conservative judges' tendency to rule for business and the state, at the expense of employees, the environment, and the criminally accused."

This is just invective, not argument. And I wouldn't be so sure that you want "and the criminally accused" in your defense of Sotomayor. Her case history suggests that she is much more pro-prosecutor than Scalia and Thomas. Which is why people like Balko are pretty concerned.

[C.S.]

publius: originalism often masks policy preferences behind a cloak of "this is what the law says."

Sebastian: I'm decidely NOT for your version of empathy--which seems to want to change the law itself because you want better outcomes.

Sebastian, it seems pretty clear that publius' argument is that originalists change the law itself in pursuit of (their own) preferred outcomes, and then pretend that they're doing it in service of the law. Essentially, he's arguing that your dismissal, quoted above, is simply a common dodge which refuses to acknowledge the role of the judge in the application of the law, while pretending that only originalists and textualists apply the law. That is just not so.

Here's the thing that Crafty's example perfectly illustrates: empathy is not about different application of the law --- it's about the weight given to the facts. Were the INS people wrong on the law? No (or arguably no) -- girl had a record, girl was not a citizen, girl goes. Was the judge wrong on the law? No -- girl was prejudiced by INS inaction which she could not control, girl was prejudiced by illegally obtained information that should not have been considered, girl stays. Same facts, but different weight given to the illegal evidence against her and the INS foot-dragging prior to her juvie record. Empathy is the judge's tool which allows the judge to apply the law -- as written -- to achieve the purpose of the law. If you're a judge and you want to wrap yourself in a textualist flag in order to make sure that the girl goes to nearly certain death, that's your choice I suppose, but it's not like its the only interpretation of the facts.

Same thing with Adam's example: the judge gave more weight to the couple's story than Protective Services did. He didn't change the law -- he applied his judgment. The choice of what weight to give certain facts is the essence of judging.

You don't have to change the law to get better outcomes. And you don't have to be empathetic to shift the weight on the facts, although it probably helps. But lets just stop with the absurd and naive pretense that originalists don't change the law to obtain their preferred outcomes, or that empathy is all about changing the law.

[C.S.]

publius: The second sense in which "empathy" is an attack on conservative jurisprudence is less theoretical. It's an attack on conservative judges' tendency to rule for business and the state, at the expense of employees, the environment, and the criminally accused.

Sebastian: This is just invective, not argument.

So you need evidence, then? Fair enough. Here you go: the Chief Justice of the United States Supreme Court. Although with him, I'd say it's less a "tendency," and more like "foregone conclusion," so perhaps not the best example.

Now, I'd love to be disabused of the rather un-patriotic notion that the most visible conservative judge in the U.S. only rules in favor of the more powerful party --- the state over the accused, the employer over the employee, etc. --- so I would invite you to direct me to a case in our illustrious Chief Justice's illustrious career on the bench where he did not so rule.

[Tom]

And I wouldn't be so sure that you want "and the criminally accused" in your defense of Sotomayor. Her case history suggests that she is much more pro-prosecutor than Scalia and Thomas. Which is why people like Balko are pretty concerned.

This is why I can't get excited about Sotomayor's nomination, even though I've been enjoying the debate it has sparked on the internet about empathy and jurisprudence.

But judges do often change when they become SCOTUS Justices, so I guess we'll see what happens when Sotomayor looks at criminal defendants' rights from her new perch. And if she still sucks on those issues, maybe Scalia and Thomas can make up for her suckiness...

[Sebastian]

"Sebastian, it seems pretty clear that publius' argument is that originalists change the law itself in pursuit of (their own) preferred outcomes, and then pretend that they're doing it in service of the law. Essentially, he's arguing that your dismissal, quoted above, is simply a common dodge which refuses to acknowledge the role of the judge in the application of the law, while pretending that only originalists and textualists apply the law."

Which is a fantastic argument against judicial review AT ALL. Not so much just pro-progressive judicial review.

[C.S.]

Which is a fantastic argument against judicial review AT ALL.

Um. . . whaaaaa?

(a) No it isn't. It's an argument for stopping pretending that (i) judges who reach progressively favored outcomes are "legislating from the bench"; and (ii) judges who reach conservatively favored outcomes are "applying the law".
(b) Do you seriously think -- and I am genuinely asking this, because I really want to know -- do you seriously think that the judge has no role in the application of the law? Because if what is quoted above is a "fantastic argument against judicial review AT ALL," then it seems like you would have to hold that belief. Which, if true, is a little mind-boggling, given that judicial review is, you know, enshrined in the founding documents of this country by the originalist-beloved Founding Fathers.

[Marty]

"Now, I'd love to be disabused of the rather un-patriotic notion that the most visible conservative judge in the U.S. only rules in favor of the more powerful party --- the state over the accused, the employer over the employee, etc. --- so I would invite you to direct me to a case in our illustrious Chief Justice's illustrious career on the bench where he did not so rule."

All of this is true, because the law favors the state over the individual in almost all of these cases. The law, by it's nature protects the greater good. The legislature can, and should, specifically deccide where that line gets drawn.

However, the state is "the people" and they are protected from the individual first, then the individual from the overrreaching state.

[C.S.]

. . . the law favors the state over the individual in almost all of these cases.

The law favors the state over the accused? My irony-meter may be a little brokedown, but Marty . . . are you serious? Please tell me you're not serious! And in context, this:

The law, by it's nature protects the greater good

presumes that the state is the greater good --- not the welfare of the people. It presumes that the protection of the rights of the accused is not, in fact, the greater good. Fortunately, the Constitution and its multiple amendments are not so obsequious towards the power of the state over the accused.

But Roberts is.

[Gary Farber]

"However, the state is 'the people' and they are protected from the individual first, then the individual from the overrreaching state."

So that's what the Bill of Rights is about: the rights of the state to defend themselves from individuals!

You learn something new every day on the interwebs.

[Bob]

I am (slightly?) concerned by encouragement of "empathy," but not for the reasons attributed above to "empathy-opponents."

My concern is that it suggests a judge should look at the case with too much consideration for the specific case and too little consideration for the greater implications of the legal rule he/she is creating.

Most law involves balancing different conceptions of the good, and doing a good job of that involves looking at the harm or benefit to more than just the parties to the case. (The exclusionary rule can't remotely be justified just in considering the case at hand -- we reduce the chance of a "correct" determination by rejecting relevant evidence. But courts concluded the exclusionary rule crucial to changing police behavior in general.)

I don't want a judge (or a legislator) who is too empathetic, to the point of letting his/her sympathies (whether for employee or employer, big corporation or consumer, criminal defendant or victim) overwhelm his/her consideration of those greater abstractions.