By Susan A. Bandes, Distinguished Research Professor at DePaul University College of Law and Author of The Passions of Law
President Obama has singled out empathy as an essential quality for a Supreme Court Justice. He plans to nominate someone who understands that justice is not simply an abstract theory, but "is also about how our laws affect the daily realities of people's lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation." The reaction has been swift and intense: the consensus is that empathetic judges are a threat to the rule of law. As one pundit put it: "Lady Justice doesn't have empathy for anyone. She rules strictly based upon the law and that's really the only way that our system can function properly under the Constitution."
This criticism confuses empathy with sympathy. It also misunderstands the judge's role. Empathy is the capacity to understand the perspective of another. It is an essential attribute for living in the social world, and a crucial component of legal judgment. Judges need to understand multiple perspectives. What they do with that understanding is a separate question.
For example, recently the high court heard arguments about whether the strip search of middle school student Savana Redding violated the Fourth Amendment. A judge might well feel empathy for both the student who underwent this humiliating search and the school officials charged with keeping students safe from harm. Empathy helps illuminate what's at stake for all the litigants, giving judges a fuller picture of the possible consequences of its decision. It doesn't resolve who should prevail in the particular case.