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If Obama Has the Opportunity to Appoint Our Next New Supreme Court Justice, Is He Right that Empathy Should Be A Core Criterion?


Wednesday, Nov. 12, 2008

This past February, the Volokh Conspiracy legal blog drew attention to Senator Barack Obama's views on what his ideal Supreme Court nominee would be like, focusing, in particular, on two key comments by Obama:

"I taught constitutional law for 10 years, and . . . when you look at what makes a great Supreme Court justice, it's not just the particular issue and how they rule, but it's their conception of the Court. And part of the role of the Court is that it is going to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, those who don't have a lot of clout. . . . [S]ometimes we're only looking at academics or people who've been in the [lower] court. If we can find people who have life experience and they understand what it means to be on the outside, what it means to have the system not work for them, that's the kind of person I want on the Supreme Court."

"We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

Now that Obama is President-elect, the Phoenix Business Journal reports, the Senate's second-ranking Republican, Jon Kyl, has taken the position that "if Obama goes with empathetic judges who do not base their decisions on the rule of law and legal precedents but instead the factors in each case, [Kyl] would try to block those picks via filibuster."

In this column, I'll argue that the dichotomy Kyl is suggesting between empathy and legitimate judicial decisionmaking is false - but also argue that Obama's remarks played right into Republican's hands by suggesting that Obama, too, may believe in just such a dichotomy.

The Problem with Kyl's Rhetoric: Empathy, Not Separation, Should Be the Default Stance in Judicial Decisionmaking

One of the law's most empathetic sentences - "Poor Joshua!" - was written by the famously liberal Justice Harry Blackmun. The case was DeShaney v. Winnebago County. Blackmun was dissenting from the Court's decision holding that a social services office could not be held liable, despite the fact that the office's employees had known Joshua's father was brutally beating him, yet done nothing to intervene. When repeated beatings finally left the four-year-old Joshua severely mentally retarded, a federal civil rights suit was brought on the child's behalf against the agency. Justice Rehnquist wrote the majority opinion, holding that Joshua had no case, and would receive no remedy, under the federal statute.

Blackmun made clear with his exclamation that he thought the result was not just wrong, but shameful - but at the same time, he expressed the view that the law had allowed the Court to rule the other way - in Joshua's favor. Specifically, Blackmun wrote that "the question presented by this case is an open one, and our Fourteenth Amendment precedents may be read more broadly or narrowly depending upon how one chooses to read them. Faced with the choice, I would adopt a 'sympathetic' reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging."

In other words, Blackmun did not fit Kyl's description of "empathetic judges who do not base their decisions on the rule of law and legal precedents." Instead, it was Blackmun's view - and the view of Justices Brennan and Marshall, who also dissented -- both that precedent allowed a ruling for Joshua, and that compassion compelled such a ruling. His logic should lead us to ask whether, in the close cases that are the hallmark of the Supreme Court, the Justices' feelings for their fellow human beings - whether compassion, empathy, or sympathy - can play a role.

Conservatives should not be too quick to say "No" here - for liberal justices have not had a monopoly on empathy: Far from it.

Conservative clerks at the Court have been known to recite the grisly facts of the underlying crimes in their memoranda regarding whether the Court should grant review in death penalty cases - presumably with their Justices' blessing. And in 1991, in Payne v. Tennessee, Justice Rehnquist authored the majority opinion approving the use of Victim Impact Statements during the sentencing stage of death penalty trials - evidence clearly meant to cause jurors to strongly empathize with the victims. (This Term, the Justices will resolve a set of cases raising the question whether some victim-impact evidence - such as emotional videotapes of the victim's life - goes too far, and consider setting limits on such evidence.)

In Payne, there were two victims, a mother and her daughter; her three-year-old son, Nicholas, survived. The evidence that Rehnquist and the other Justices in the majority allowed to be presented came from the victim's mother - Nicholas's grandmother - who testified about the pain Nicholas had felt expressed after the deaths of his mother and sister. Justice Rehnquist did not say "Poor Nicholas!" but he might as well have. Justice Blackmun, in contrast, dissented.

These two cases show that empathy is not the monopoly of either side of the political spectrum - and that if we were to completely exclude empathy from the Court's decision-making, few of us would like the result. They also show that the question really isn't whether empathy plays a legitimate role in constitutional decisionmaking - both sides effectively concede that it does - but who receives empathy, and who is denied it.

Interestingly, Obama too showed empathy for a child, during the campaign, in the context of a constitutional case the Court resolved. The case, Kennedy v. Louisiana, raised the question whether the death penalty could, consistent the Eighth Amendment, be imposed for child rape. The victim was eight years old at the time of the crime; she was referred to by the pseudonym "L.H."

The Court said no; Obama said yes, for this was a sufficiently "heinous crime." In one sense, Obama was applying a theory he had developed as a constitutional law professor about what, if any, set of crimes can merit the death penalty. In another sense, he was saying, "Poor L.H.!" L.H.'s age when she suffered the crime was not far from those of Obama's daughter's; surely Obama would not have been human, had that fact not played at least some role in his view of the case.

The Problem with Obama's Stance: The Suggestion that Empathy Trumps - Rather than Complementing - Experience with Interpreting the Law

Virtually everyone empathizes with young children, but in some instances, extending empathy across group boundaries can be a challenge. Obama's view of empathy seems to draw upon John Hart Ely's idea of how the political process disserves "discrete and insular minorities," so that the Constitution and Supreme Court must intervene to protect them.

In particular, the remarks quoted above, Obama mentions his interest in Justices who know "what it means to be on the outside." He also mentions the need for a Justice "to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, those who don't have a lot of clout" - again seeming to echo Ely.

Obama's extension of Ely's ideas makes a great deal of sense in this context. If a subset of society is truly "discrete and insular"-living, in important ways, apart from the majority - then the rest of society will predictably have more empathy for its own members, than for the members of the subset, who will seem like strangers. Attending a gay wedding will bring home viscerally the importance of gay marriage. Going to school with African-Americans will shatter stereotypes about them. In contrast, de facto residential segregation, defining "black neighborhoods" and "gay neighborhoods," may defeat the empathy that arises from daily interaction, from natural friendships and relationships.

Importantly, because our society suffers from these empathy gaps, a focused search for empathetic judges may be necessary simply to ensure basic fairness for everyone, equally - a goal everyone, liberal and conservative, should believe in. When a society is full of barriers, empathy isn't a special liberal conceit; it's fundamental to preventing systemic injustice.

Where I think Obama goes wrong, however, is in his suggestion that our current federal judges so lack empathy - his crucial criterion - that lack of experience as a law professor or judge can be ignored in favor of "life experience." When Obama takes office, I hope that he at least gives such candidates a trial run on a federal appeals court before elevating them to serve for life on the highest court in the land.

That's because experience as a judge - and, especially, as a trial judge -- is life experience. And it is valuable for a Justice to have: Justices need to be able to foresee whether the solutions they craft, and the lines they draw, will be workable at a trial-court level and what their practical results may be. They also need to have the credibility to persuade their colleagues on the court - credibility that will be lacking in someone who has never handed down an opinion, presided over a trial, or written at length about a legal theory. Without credibility, empathy will do no good in the fight to move sentiments like "Poor Joshua!" into majority opinions, not dissents.

In sum, President-elect Obama should find or appoint empathetic trial court or appeals judges - rather than bypassing them to look outside of the judiciary or academia. Otherwise, he may guarantee the kind of votes he would like, but it is unlikely that he will find, in his nominee, his ideal Justice.

Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes free MP3 and text downloads of the novel's first chapter.

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