By Walter J. Kendall III, Professor, The John Marshall Law School
Watching the early initial statements from the Senators, especially the reaction of Sen. Jeff Sessions (R-Ala.) to the character trait of empathy, reminded me of several statements of Justice Thurgood Marshall.
- "[I]t is perfectly proper for judges to disagree about what the Constitution requires. But it is disgraceful for an interpretation of the Constitution to be premised upon unfounded assumptions about how people live." U.S. v. Kras, 409 US 434.
- In another opinion, Kadrmas v. Dickinson Public Schools, 487 US 450, he characterized the factual findings of the majority as "callous indifference to the realities of life for the poor."
- In Illinois v. Perkins, 496 U.S. 292, the majority characterized some questioning by the police as "conversation." Justice Marshall argued it was better characterized as an "interrogation."
In other words "empathy" understood as the ability to stand in another person's shoes, as the saying goes, is not fairly considered bias towards one party or the other, as Sen. Sessions sees it; rather it is the ability to, or at least the effort to, understand the factual reality, the lived experience of both parties, before the Court. It is an effort to understand the social political-economic problem the Court is being asked to address.