Melissa Harris Lacewell on Empathy, its importance to social cohesion, and more on its importance to good judging.

Wisdom from Melissa Harris Lacewell on the centrality of empathy in creating a United States:

[W]e are participants in a nation only to the extent that we imagine ourselves to be part of a community or a “people.” Empathy is an important part of what allows us to engage in that imagined sense of linked fate, shared identity, and common purpose. Without empathy we cannot enter into a social contract whereby we are willing to subjugate some of our selfish impulses in order to abide by the rule of law and the dictates of a civil society.  

As Laura E. Little points out in “Adjudication and Emotion,” 3 Florida Coastal Law Journal, 205, 210 ( 2002)  , “Empathy . . . may actually facilitate the process of understanding competing points of view so necesssary to quality adjudication. As Judge Richard Posner argues, empathy enables a judge to integrate into her decsionmaking remote human interests that are not immediately before the judge, but are possibly affectetd substantially by the judge’s decsions. Posner praises empathy for its cognitive character, suggesting that the emotion more likely reflects an evaluation of beliefs, rather than an ungrounded emotional reaction that short-circuits reasoning.” [Citing Richard Posner, “Emotions versus Emotionalism in Law,” The Passions of Law (Susan A. Bandes, ed. 1999).

Yes, Kevin, empathy is part of judging well, and Oliver Wendell Holmes thought so too.

Kevin O’Brien of the Plain Dealer expresses the view of many who mock President Obama’s desire that his Supreme Court nominee have “empathy”:

I have scoured my pocket copy of the Constitution. Couldn’t find a single reference to “empathy,” though. I tried searching an online version, too, but when I typed “empathy” in the search window, the only answer I got back was, “Did you misspell something?”

I looked up the oath of office that Souter’s successor will take. I don’t see “empathy” there, either, . . . 

O’Brien and his ilk have a stunted view of what it means to be a judge. Applying the law is not like doing algebra; instead, it is far more often (at least in cases so contested they get to the Supreme Court) a matter of making difficult judgments that involve weighing values and consequences in the real world. It hardly is ridiculous to consider “empathy” a valuable quality in making these judgments. One need not look far into the past to see a case where an inability to empathize with what Congress plainly intended led to a ridiculous (and soon overturned) outcome.

But you need not take my word for it.  Oliver Wendell Holmes, Jr., Supreme Court justice and one of the most influential intellects in U.S. legal history, made clear in The Path of the Law that it is a fallacy to think judges can apply only logic to the law and that a keen sense of the social impact of one’s decisions is fundamental to sound judging (emphasis added):

The fallacy to which I refer is the notion that the only force at work in the development of the law is logic. . . . The danger of which I speak is not the admission that the principles governing other phenomena also govern the law, but the notion that a given system, ours, for instance, can be worked out like mathematics from some general axioms of conduct. . . .

This mode of thinking is entirely natural. The training of lawyers is a training in logic. The processes of analogy, discrimination, and deduction are those in which they are most at home. The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. You can give any conclusion a logical form. You always can imply a condition in a contract. But why do you imply it? It is because of some belief as to the practice of the community or of a class, or because of some opinion as to policy, or, in short, because of some attitude of yours upon a matter not capable of exact quantitative measurement, and therefore not capable of founding exact logical conclusions. Such matters really are battle grounds where the means do not exist for the determinations that shall be good for all time, and where the decision can do no more than embody the preference of a given body in a given time and place. We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind. No concrete proposition is self evident, no matter how ready we may be to accept it, not even Mr. Herbert Spencer’s “Every man has a right to do what he wills, provided he interferes not with a like right on the part of his neighbors.”

. . . There is a concealed, half conscious battle on the question of legislative policy, and if anyone thinks that it can be settled deductively, or once for all, I only can say that I think he is theoretically wrong, and that I am certain that his conclusion will not be accepted in practice semper ubique et ab omnibus [always, everywhere, and for everything]. . . .

I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious, as I have said. . . . I cannot but believe that if the training of lawyers led them habitually to consider more definitely and explicitly the social advantage on which the rule they lay down must be justified, they sometimes would hesitate where now they are confident, and see that really they were taking sides upon debatable and often burning questions.