By Kent Greenfield, Professor of Law and Law Fund Research Scholar, Boston College and is presently writing a book about choice and consent in law, politics and economics. Greenfield is a former Clerk to Justice David Souter (1994-95).
Ever since President Obama announced that he would seek out an empathetic replacement for David Souter on the Supreme Court, the nation has engaged in a revealing debate about empathy. No one denies that empathy is an important quality for our daily lives, and something we should engender in our kids. But there is an honest disagreement about whether empathy is an appropriate qualification for a judge.
Liberals like empathy, because compassion brings mercy, and mercy is seen as an important part of good judging. Conservatives denounce empathy, saying compassion breeds judicial activism. Law professor Steven Calabresi has warned that asking judges to be empathetic is like removing the blindfold from the iconic Lady Justice, allowing the judge to decide in favor of whichever perspective elicited more feelings of compassion.
If empathy is simply a matter of being open to feeling a certain amount of sympathy for one party or the other, the conservatives may be right that it creates risks for a judicial institution. Judges might be too quick to base judgments on unacknowledged bias or prejudice.
There is a better definition of empathy for the judicial context, however, that focuses not on how judges feel but how they think. This kind of empathy is not only beneficial for the institution, but crucial. And David Souter has embodied this kind of empathy in his tenure on the court. Let me explain.