The Quality of Empathy Is Not Strained

Empathy is an excuse for not upholding the law when it comes to judges.

Its fine for legislators to have empathy when writing the laws but its not the place of judges to have it except in sentencing within the range of guidelines provided for by the law.

Justice should remain blind not looking at the world through glasses tinted by a personally sunjective "empathy".

This is just another example of the far right jumping on something ridicules in an attempt to bring down Obama's popularity numbers. Pure stupidity that makes them look petty.

They need to concentrate on Obama's real mistakes...like the Chrysler deal, not whether one word in an entire speech about a process overseen by congress is appropriate or not.

They need leadership in a BAD way.

I know you have difficulty understanding why conservatives are not thrilled with using “empathy” as a characteristic for a great Supreme Court judge, but let me give the explanation a try.

We believe that the legislative branch should use empathy in the drafting of laws. While making civil or criminal statutes, lawmakers should put themselves into the shoes of those most likely to be affected. They should use all of their life experiences to make the laws as empathetic as possible.

The executive branch, charged with enforcing the laws, need to exercise empathy in who, what and how each law is applied to. Using prosecutorial discretion, extenuating circumstances should be taken into account before proceeding with any action.

However, when it comes to the judicial branch, the laws should be interpreted and applied equally, regardless of wealth, power, race or any other circumstance. Justice should be blind to the defendants and not a substitute for the voting process.

Yes, this method takes a degree of courage for elected officials, but allowing judges to change policy by fiat from the bench is a recipe for gross injustices when the decisions start going in the opposite direction.

Leonidas



"Justice should remain blind not looking at the world through glasses tinted by a personally subjective "empathy"."

I wonder what you do with the stats that show whites convicted of the same crime have traditionally received lesser sentences than blacks. The same holds true with white collar crime compared with low level theft.

I believe the 'empathy' Obama speaks of is an empathy for justice in the legal system. The Supreme Court decides cases where there is no precedent or judgments requiring clarification to existing law. If a justice can decide based upon his empathy for justice, his decisions will maintain the spirit of the law and not just the letter.

Judicial empathy is a trial-level judge asset, but an Appellate Court or Supreme Court Justice liability.

Why? When setting forth judicial rules of let's say "reasonable" searches or "cruel and unusual" punishments, empathy would seem sensible too.

Jwest...I understand why conservatives don't like the word in this context, but I don't understand why they jump all over one word when it makes them look like a bunch of upset kids that just had their white house taken away.

The average american that doesn't pay attention or at least doesn't give considerable thought to these issues is more concerned about much bigger things than the word empathy. This whole thing makes conservatives look silly.

It seems to me that the question of whether empathy is desirable in a supreme court justice is closely related to the question of the circumstances under which corporations should be treated as people in the eyes of the law.

Of late the judicial system has exercised a kind of inverse empathy whereby corporations are granted subjective consideration in situations where it is denied to actual people. For example, if a corporation kills somebody in pursuit of profit, why should it not be subject to the death penalty?

Joe -

As with all generalizations in few words, there is an utter lack of nuance in my statement.

However, at an abstraction, my point was at the trial court level the court can and should be considering the particular and specific motivations and individual circumstances.

At the Appellate and SCOTUS level, they should be focusing on the law and the Constitution as it applies in general, perhaps to a specific instance to frame a generalization of applicability, but overall as it applies to the larger picture.

That is the gist of what I meant.

Thank you AustinRoth for the clarification.

But, when appeals courts decide, they too address "particular and specific motivations and individual circumstances." When applying "the law" (and district court judges do that too), empathy as a whole can be used. Setting forth rules in this context can and probably should benefit from that human emotion. Prof. Kmiec's discussion of the matter, linked by Dahlia Lithwick further makes the point.

Joe -

I am not saying Appellate Court judges should not be without empathy, nor that they never consider the specifics, or that trial court judges should simply rule their emotions. As I said, I was making a high-level generalization, as to where empathy should play a more prominent role.

The bottom line is that in my opinion Appellate rulings at times are forced into paths that serve the purpose of forcing the legislature to face shortcomings in the law, rather than trying to re-write law due to unjust outcomes.

I am not going to write a deep, multi-paragraph synopsis of my views on this in toto, so it will be easy for you to continue to find cracks in the seams of my statements to criticize me, if you so desire.

However, we probably agree more than we disagree on this topic.

Okay, that's fine. I'm not trying "gotcha" here or anything. I just thought (and think) your comments don't quite work, even as generalizations. Your "bottom line" in your latest response also doesn't quite follow for me, but again, I'll leave it there.