This post was written in collaboration with Kenneth Sharpe
1. Biased or prejudiced in favor of a person, group, side, etc., over another
2. Not total or general; incomplete
The sound and fury about empathy and justice in the Sotomayor hearings are allowing both conservatives and liberals to score points with their political bases. But because they miss or misunderstand the psychology of judicial decision making, they misframe the central question we should ask about any judge: is she wise?
For many conservatives, empathy is code for caring too much about, and being too soft on, woman and minorities. But this concern draws on a widespread, and quite legitimate, suspicion about emotions like empathy. Emotions are personal feelings. They are partial (meaning 1); that is, biased. They are destructive of the rule of law. Law is the sturdy, rational fence we build to keep partial, biased emotion out. To apply the law fairly, we need judges who are detached enough so as not to be ruled by their emotions.
The right's interpretation -- or manipulation -- of the issue notwithstanding, this position has deep roots in a heritage handed down to us from distinguished western philosophers like Descartes, Hume, and Kant. In their eyes, emotion was the enemy of reason. And they had good reasons to distrust powerful emotions like empathy. First, we are often not in control of our emotions; they run us, instead of the reverse. Acting under the influence of emotion is thus like being possessed. "The devil made me do it." Second, emotions prejudice us toward people we love, and against those we don't.
Third, emotions are unstable. Sex without a condom may seem reasonable in the heat of passion. Or yelling at your boss after you've been passed over for a promotion. But things are likely to feel different a little later. Fourth, emotions are too particular. We feel so bad about this particular ill-fed child or wronged patient that the image on our mental screen clouds our judgment about "what is just" or "what is fair" in general.
For Judge Sotomayor's supporters, empathy is also code. They blame a lack of empathy for a judicial system -- and a society -- that doesn't care enough. They blame it for years of government bias, and for the failure of the government to take responsibility for the less fortunate. They worry that judgment without empathy is inevitably partial, meaning 2 -- that is, incomplete. But given the real dangers of emotion, is there any basis for the claim that an emotion like empathy is a virtue in a judge?
There is some, according to recent research in psychology. It turns out that those who lack emotion -- Vulcans like Star Trek's Mr. Spock -- can't make good moral choices in particular circumstances. Indeed, in extreme cases, like the brain-damaged patients of neurologist Antonio Damasio, they can't make any choices -- moral or otherwise. For one thing, without emotions, people don't get the moral signals that alert them that some kind of action is required -- like the anger that signals (eg., when a car doesn't slow down for an elderly woman crossing the street) "this is a wrong that must be righted." For another, emotions like empathy act as moral tutors: we learn much about a case by feeling what it must have been like for the victim, and for the perpetrator.
Witness the recent Safford Unified School Distrcict #1 et al. v. Redding Supreme Court ruling on the strip-searching of a 13-year-old girl, Savana Redding. The decision rested on balancing the public harm -- was Savana hiding prescription strength ibuprofen to give to other students -- against the "reasonable societal expectations" and the girl's feelings that the intrusion was "embarrassing, frightening, and humiliating." When Justice Stephen Breyer wondered, during oral argument, "why stripping to your underclothes" was a big thing since children do it all the time "when they change for gym," Justice Ruth Bader Ginsburg retorted that a girl asked to "to shake (her) bra out" and "stretch the top of (her) pants" in front of school officials is not going to feel the same as "13-year-old boy in a locker room." Being able to step into Savana's shoes, with the help of Justice Ginsburg, was a critical part of the balance when eight Justices, including Breyer, agreed that the search was unreasonable.
Empathy, researchers have shown, is not just a raw, unanalyzed emotion. It's an educated emotion. Young children show distress at a crying peer, but have no idea what to do to provide comfort. Over time, they learn: "it's not my pain, it's her pain, and what would comfort me might not comfort her." Emotions in general need to be trained so that they give us the right signals -- at the right times. It takes great skill -- learned only through experience -- to be able to take the perspective of others. And without this educated feeling, we can't "stand in somebody else's shoes and see through their eyes," as President Obama put it. Philosophers from Aristotle to Rousseau to de Tocqueville have recognized this ability to take the perspective of another as a crucial virtue in a political democracy. Without it, citizens, lawmakers, and judges can't know the effects of their choices on fellow citizens; they can't determine responsibility, or assess whether harm was intended or accidental, or whether murder was first or second degree.
But as the political battle lines are drawn between empathy, on the one hand and the detachment of the "law," on the other, both sides miss the real mark of a wise judge -- the ability to balance these seeming opposites. Good law schools explicitly train lawyers -- and would-be judges -- in these balancing skills. Studying cases in the classroom or working in legal clinics, students are pushed first to take the side of the plaintiff and then take the side of the defendant--to be able to stand in both their shoes, to see and feel the world as they do. But such empathy is decidedly not enough. They are then required to stand in the shoes of the judge. What does the law say? What is the precedent? Case after case, they move back and forth between empathy and detachment. The learn to see up close and from a distance -- and they learn the importance of seeing from both perspectives at the same time. Anthony Kronman, former Dean of Yale Law School, described the process of learning to be a wise judge as learning to "wear bifocals."
The law school experience is just a taste of the real life experience of learning to wear bifocals, year after year, and in case after case, on the bench. The mark of a wise judge is the ability to balance. Judges need judgment -- wisdom -- and to deny empathy or detachment its proper place is to cut wisdom off at the knees. One without the other would give us only partial justice.
Follow Barry Schwartz on Twitter: www.twitter.com/BarrySch