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My LA Times Debate with Erwin Chemerinsky, Part 2:

The second part of my LA Times debate with Erwin Chemerinsky over the Sotomayor nomination is now available, here. In this series of posts, we consider the pros and cons of judicial reliance on "empathy" in making legal decisions:

President Obama has come under fire for his "empathy" standard in selecting a Supreme Court nominee. Is there a conflict between considering the real-world implications of Supreme Court decisions and staying true to the intent of the Constitution and federal law?

I argue that relying on empathy is likely to reduce the quality of judicial decision-making and bias it in favor of whatever groups the judges feel more empathetic towards. Chemerinsky contends that judicial reliance on empathy is both inevitable and often a positive good.

Writing the piece on empathy helped me to clarify my thinking on the subject. However, I fear that to some extent Chemerinsky and I are talking past each other. I don't disagree with Chemerinsky's claims that conservative justices (like liberals) sometimes base decisions on empathy and on their political ideology, and that judicial reliance on empathy cannot be completely eliminated. Still less do I reject his claim that cases that come before the Supreme Court often don't have easy answers (a point I noted myself). Rather, my view is that reliance on empathy is a negative rather than a positive - whether practiced by conservative judges or liberal ones. I also think that it is a poor way to resolve either close cases or easy ones. Finally, I have no wish to defend all of of the jurisprudence of the current conservative justices or to suggest that they always meet the standard of judicial impartiality I advocate. Ultimately, I think the real issue is not whether conservative and liberal judges sometimes rely on empathy (they both obviously do), but whether we should strive to reduce such reliance or increase it.

Part I of our debate is available here. The discussion will conclude tomorrow.

tvk:
Isn't this a typical equal protection debate, where you can go equally up or go equally down? That is, your concern with empathy seems to be that it will distort decision-making in favor of certain groups. But that can be solved in two ways. We can have judges that are empathetic to no one (and therefore cannot discriminate), or judges that are empathetic to everyone (and therefore cannot discriminate). I don't know which direction is easier to achieve, but it seems that is the question that you are both dodging.
5.28.2009 6:26pm
Putting Two and Two...:

I also think that it is a poor way to resolve either close cases or easy ones.


Would this hold true in an eminent-domain case in which a city agency was offering a perfectly reasonable, even generous, price to a little old lady who was, some might say, "irrationally" attached to the home in which she had lived her entire life?
5.28.2009 6:28pm
CJColucci:
I think the question is whether it is better to have judges who recognize empathy as empathy or judges who don't recognize their empathy for the sort of folks they're comfortable with and consider those folks' concerns and experiences simply "normal."
5.28.2009 6:31pm
FWB (mail):
There ain't no good intentions clause in the Constitution!!

Rule of law or rule of man? The blind justice means no empathy, no sympathy. Judge strictly, impartially by the facts and the law as written. Interpretation is a ploy to circumvent amendment.

Tiochfaidh ar la!
5.28.2009 6:43pm
KWC (mail):
Yet another epic win for Chemerinsky.

Ilya, you just aren't getting it, it's impossible not to let your personal experiences affect the way you see the facts in the cases and the way you interpet the law. If it were possible to remove all humanity from judging -- which is what you suggest we should -- then we would be able to apply easy formulas. In other words, we wouldn't need judges at all.

You conservatives relied on this "empathy" when you got the Supreme Court to wholly ignore the actual text and history behind the 2nd Amendment in Heller. A decision you and your colleagues praise, despite its legal disingenuity.
5.28.2009 6:44pm
David Matthews (mail):
I think there's a necessary level of empathy whenever a judge, or Justice, is required to apply a "reasonable person" standard.

I remember a case I read about here at VC, where Justice Scalia's opinion of what a "reasonable person" would know or do when ordered to do something by a cop, was just totally out of whack. He argued that a "reasonable person" would know that they didn't need to obey the cop under this or that circumstance.

I'm a pretty reasonable person. I haven't the faintest clue when I don't need to obey a cop. I pretty generally err (if it is err) on the side of doing whatever the cop tells me to. While Scalia was of course correct that technically the person in question didn't, in this situation, have to obey the cop, he was wrong in thinking that some generic "reasonable person" would automatically know that.

I think that there's some level of empathy, or at least some connection with reality, that has to be available to a Justice. Clarence Thomas has availed himself of just such an understanding in several of his opinions, most notably his dissent in Kelo.
5.28.2009 6:44pm
ShelbyC:

You conservatives relied on this "empathy" when you got the Supreme Court to wholly ignore the actual text and history behind the 2nd Amendment in Heller.


Just...Amazing.
5.28.2009 6:51pm
Christopher M (mail):
I think the question is this. Do you think that appellate legal decisions in hard cases should be based virtually entirely on textual, legal materials? In other words, should a good judge be able, more or less, to lock him or herself in a room with the record below, the relevant laws, regulations, precedents, etc., and emerge with the right answer? If so, then obviously empathy has no role to play.

But most people don't think that. Most people think that, in some difficult cases, appellate judges must and should take into account how their decisions will affect people's lives, shift balances of power, restructure commercial and social institutions, etc. This is almost never about implementing any judge's grand vision of what society should be like. But it IS about making legal policy at the margins.

If you want good policy, I would think that you'd want a judge who knows how life looks from a range of different social positions. It isn't wishy-washy or touchy-feely to recognize that people's experiences affect the nature of the concerns they understand and take seriously. This is not just code-language for a specific political bias. I would be very unhappy with a Supreme Court that was, say, made up entirely of people who lacked familiarity with the business world, because they would tend not to understand how the world looked from within that social class, and more importantly, they would tend to have a poor grasp of the effects their decisions would have. Similarly, I do not want a Supreme Court made up entirely of economically privileged white men, because as a class, like any class, we tend to view the world through structures shaped on the basis of our own experiences, which tend to differ subtly but very really from the experiences of people outside that class.

Now there are only nine justices, so you aren't going to get every important perspective recognized. To the extent that "empathy" involves the ability to take seriously the interests and concerns of people who are different than you in socially important ways, it's hard to see how it could be a bad thing.
5.28.2009 6:53pm
David Matthews (mail):
"I would think that you'd want a judge who knows how life looks from a range of different social positions."

If you believe that, then it should at least give pause, that soon to be six out of the nine Justices are Catholic, and nine out of the nine have graduated from one of two law schools.

I wonder what the bloggers here at V.C. think of that Harvard/Yale standard. As so many of them are professors at law schools, none of which are Harvard or Yale, do they honestly believe that they've never helped produce a single graduate worthy of consideration for the Supreme Court?
5.28.2009 6:59pm
David Welker (www):
Somin,

Here is another way of looking at empathy. You view it negatively, because you equate it with favoritism. I don't like favoritism either, and to the extent that "empathy" is merely code for favoritism, I agree with you.

However, I think there is another way to view "empathy" and that is as an neutral information processing tool. I don't think it is favoritism to consider the case from the perspective of both the plaintiff AND the defendant, temporarily imagining you are in their shoes (and often more importantly - similarly situated plaintiffs and defendants down the road.) In fact, I think that this move of using your imagination is actually critical to actually understanding the issues and coming to a decision in cases where a consideration of consequences is important.

If you reject that, then you have to reject the law and economics movement, if you ask me. Because, once we start talking about the "incentives" of the parties, we are putting ourselves in their shoes. Talking about incentives is an act of empathy.

Obviously, one has to be concerned about favoritism and we can agree that favoritism is bad. But, one should not confuse empathy with favoritism. They are very different things.
5.28.2009 7:08pm
Asher (mail):

To a large extent, professor, you are attacking straw people.

Got to love the gender-neutral language from EC.
5.28.2009 7:12pm
Ilya Somin:
We can have judges that are empathetic to no one (and therefore cannot discriminate), or judges that are empathetic to everyone (and therefore cannot discriminate). I don't know which direction is easier to achieve, but it seems that is the question that you are both dodging.

I don't think it's possible to have a judiciary filled with people who empathize with "everyone" because most judges (like most people) tend to empathize most with those like themselves.
5.28.2009 7:15pm
David Welker (www):
Another point.

There is more risk, in my view, of empathy really turning into favoritism to the extent that one unrealistically rejects the need to employ empathy. What is important is that empathy is done in a rigorous and neutral way without favoritism.

Those who reject empathy are going to exercise it anyway. Because it is pretty much inevitable that when you have people before you and you are making decisions that affect their lives, you are going to sometimes imagine what it is like to be them. Plaintiff and defendants are real people, and curiosity about people is a typical human trait.

But the risk is that such imagination, also known as empathy, is going to be employed in a selective way. By explicitly acknowledging the role of empathy and dealing with it in a rigorous manner, one can avoid the sort of automatic favoritism that might otherwise creep into the analysis. That is, an individual explicitly dealing with empathy in a rigorous way is likely to avoid favoritism much more successfully than a person who pretends that they can avoid empathy (which is a very common bi-product of normal human curiosity) but inevitably fails to do so.

And anyway, decisions made with empathy are going to be better. If there is a gap in the law that needs to be filled by a judge with a consideration of consequences, I would prefer that the judge consider the incentives of the parties and similarly situated parties rather than pretending that incentives don't exist and just choosing a random result or whatever result fits the idiosyncratic preferences of the judge, for example.

If conservatives want to rant against something, they should rant against favoritism, not empathy.
5.28.2009 7:20pm
tvk:
But isn't that the root of your disagreement with Chemerinsky? His counter to your proposal (that judges try their best to restrain their empathetic impulses) is that that is also impossible to fully implement, and that the "residue empathy" most difficult to get rid of will be (and already is) that which systematically favors precisely the privileged groups and white-male dominated viewpoints of today's court. His proposal is that we either have judges trying to be empathetic to everyone, or a "diverse" court that, once grinded through the sausage factory, will as a unitary entity be empathetic to everyone. Like I said, I am not sure which direction is easier, but it strikes me that both of you are ignoring the key issue.
5.28.2009 7:22pm
David Welker (www):

I don't think it's possible to have a judiciary filled with people who empathize with "everyone" because most judges (like most people) tend to empathize most with those like themselves.


Because we tend to automatically empathize with people like ourselves, that is precisely the reason we need to deal with empathy in a more rigorous manner.

Unless you are a robot and not a human, you cannot just turn of your tendency to empathize. It is better to deal with the issue head on rather than pretending that you are a robot and that it is a non-issue.
5.28.2009 7:24pm
Ilya Somin:
Ilya, you just aren't getting it, it's impossible not to let your personal experiences affect the way you see the facts in the cases and the way you interpet the law. If it were possible to remove all humanity from judging -- which is what you suggest we should -- then we would be able to apply easy formulas. In other words, we wouldn't need judges at all.


"Humanity" is not reducible to empathy alone. Reason, knowledge, and judgment are also a part of our "humanity." In my view, judges should rely on those qualities in making legal decisions. There are many professional roles where we have to rely on one element of our humanity while downplaying or minimizing others. Bias,favoritism, and nepotism are also part of our humanity. But that doesn't mean judges should base decisions on them. The same goes for empathy.

You conservatives relied on this "empathy" when you got the Supreme Court to wholly ignore the actual text and history behind the 2nd Amendment in Heller. A decision you and your colleagues praise, despite its legal disingenuity.

First, I am not a "conservative." Second, far from ignoring the text and history of the 2nd Amendment, the Heller majority examines both at great length and nowhere mentions any empathy they might have for gun owners. Perhaps you think they misinterpreted the text or the history. But that is very different from inaccurately claiming that they ignored it (which they clearly didn't) or that their decision was based on empathy (which is theoretically possible, but completely unproven).
5.28.2009 7:25pm
Ilya Somin:
Because we tend to automatically empathize with people like ourselves, that is precisely the reason we need to deal with empathy in a more rigorous manner.


I agree. But I think the way to deal with it in a "rigorous manner" is to be aware that it exists and to strive to minimize its influence on judicial decisionmaking as much as possible. Similarly, bias and favoritism exist and judges should be aware that they are susceptible to it, but should do all they can to avoid letting it influence their decisions.
5.28.2009 7:28pm
Ilya Somin:
I also think that it is a poor way to resolve either close cases or easy ones.



Would this hold true in an eminent-domain case in which a city agency was offering a perfectly reasonable, even generous, price to a little old lady who was, some might say, "irrationally" attached to the home in which she had lived her entire life?


As a matter of fact it would. I think Kelo was wrongly decided, but not because the majority justices showed insufficient empathy for Susette Kelo. In fact, I think they had no less empathy for her than the dissenters. Rather, they erred in assessing the text and history of the Fifth Amendment and in their understanding of how the political process underlying economic development takings actually works.
5.28.2009 7:30pm
Arkday:
@Ilya


"Humanity" is not reducible to empathy alone. Reason, knowledge, and judgment are also a part of our "humanity." In my view, judges should rely on those qualities in making legal decisions.


But do we really want our judges to employ a decision procedure when addressing legal questions? For that is what, it seems to me, you're tending toward.
5.28.2009 7:55pm
Jack Fortran (mail):
Judges already use decision procedures. They are called precedent and doctrine and canons of construction. But the Supreme Court can overrule precedent and change doctrine and choose its canons at whim. Everyone knows that. Since Sotomayor is being appointed to SCOTUS, Ilya's objections make no sense.
5.28.2009 8:22pm
Arkday:

Judges already use decision procedures.


That's not quite what I meant by 'decision procedure'. I meant it in the sense described in the link: a mechanical procedure, such that one could build a machine to answer the question asked. For it seems to me that much of the discussion of legal questions on this blog assumes that the questions are decidable in sense mentioned. Another way of putting it is that for those folks, the law never runs out.
5.28.2009 8:36pm
David Welker (www):

I agree. But I think the way to deal with it in a "rigorous manner" is to be aware that it exists and to strive to minimize its influence on judicial decisionmaking as much as possible.


Maybe the way to minimize the negative influence of empathy is not equivalent to minimizing empathy.

I think empathy can obviously manifest itself in a negative way. That is, if it manifests itself as favoritism as between the parties, because it was being employed selectively. (And by default, there is likely to be an automatic tendency to employ empathy selectively.)

However, I think empathy can also manifest itself in a positive way, as when it is used as an information processing tool that gives the decision-maker a better picture of the likely actual consequences of alternative decisions.

Therefore, I think the approach of minimizing empathy has serious costs as well as benefits. Further, the benefits of minimizing empathy can be achieved without imposing those serious costs, which I think are in fact quite considerable. For example, without the use of empathy, one would not be able to use knowledge of incentives or knowledge of the political system in resolving a case where the law really was ambiguous. In general, one could not really consider consequences in an accurate way without utilizing empathy.
5.28.2009 9:09pm
Ben S. (mail):
A little late to the party, but Dean Chemerinsky's examples of how Justice Scalia's voting record matches his conservative political beliefs are largely cherry picked and therefore irritate me to no end.

Dean Chemerinsky no doubt intentionally omits numerous examples of cases where Justice Scalia reached decisions that seemingly run counter to conservative interests. For instance, Justice Scalia has frequently voted in favor of criminal defendants including alleged child molesters and drug traffickers, hardly votes that are consistent with the Republican platform of getting tough on crime. Much the same can be said of Justice Scalia's vote in the famous flag burning case. There are no doubt many others that I cannot think of at the moment.

In other words, from the pool of decisions Justice Scalia has rendered, Dean Chemerinsky chose only to report those which aligned with the Justice's conservative politics and ignored the many that do not. The result is to cast a distorted picture of Justice Scalia in particular and, more importantly, the conservative judicial philosophy in general.

The only way Justice Scalia (or any conservative justice) could be immune to such cherry-picked statistics is to have a voting record as a judge that NEVER aligned with his or her politics, lest any overlap be used as an example of his or her inherent bias.
5.28.2009 10:18pm
David Welker (www):

For instance, Justice Scalia has frequently voted in favor of criminal defendants including alleged child molesters and drug traffickers, hardly votes that are consistent with the Republican platform of getting tough on crime.


And hardly votes consistent with the Democratic platform on crime either.

That there are a minority of cases where a particular methodology leads to a result you do not like does not prove that the methodology was not chosen precisely because in a majority of cases, the methodology yields results you view as favorable. The minority of cases could very well be considered a very small cost compared to the overall benefits of the methodology.
5.28.2009 11:12pm
Glen Alexander (mail):
Do you think that appellate legal decisions in hard cases should be based virtually entirely on textual, legal materials? In other words, should a good judge be able, more or less, to lock him or herself in a room with the record below, the relevant laws, regulations, precedents, etc., and emerge with the right answer? If so, then obviously empathy has no role to play.

But most people don't think that. Most people think that, in some difficult cases, appellate judges must and should take into account how their decisions will affect people's lives, shift balances of power, restructure commercial and social institutions, etc. This is almost never about implementing any judge's grand vision of what society should be like. But it IS about making legal policy at the margins.


That's why, thank God, most people aren't Supreme Court justices (or appellate court judges).

And, yes, many decisions have been all about a judge's grand vision of what society should be like.

Where have you been for the past 60 years? And youth is no excuse for ignorance of history.
5.28.2009 11:16pm
Ilya Somin:
For example, without the use of empathy, one would not be able to use knowledge of incentives or knowledge of the political system in resolving a case where the law really was ambiguous. In general, one could not really consider consequences in an accurate way without utilizing empathy.

I don't think it's impossible to understand incentives or the political system without empathy. Economists, social scientists, and other scholars all the time develop sophisticated analyses of these things even though much of their work involves analyzing the behavior of people whom they do not know and have little or no empathy for.
5.28.2009 11:21pm
Ilya Somin:
They are called precedent and doctrine and canons of construction. But the Supreme Court can overrule precedent and change doctrine and choose its canons at whim. Everyone knows that. Since Sotomayor is being appointed to SCOTUS, Ilya's objections make no sense.

The Supreme Court can to some extent do what it wants. However, that doesn't mean that anything its members choose to do is necessarily justified. Surely, we wouldn't want a Court that simply decides cases based on "whims." Thus, the question still remains whether the Court should rely on empathy to make decisions or base them on other criteria.
5.28.2009 11:23pm
Steve:
"Humanity" is not reducible to empathy alone. Reason, knowledge, and judgment are also a part of our "humanity." In my view, judges should rely on those qualities in making legal decisions.

You list these qualities as though they have precise definitions that we can all agree on, but in fact they don't. Empathy bad, judgment good, but it's a pointless exercise since the definition of empathy seems to be "an exercise of judgment or common sense that Prof. Somin finds inappropriate."

Of course you're bound to win the debate, because you're defining the terms in a way that makes your objections valid. That doesn't mean that what President Obama means by empathy is the same thing you mean by empathy, though.
5.29.2009 12:01am
David Welker (www):

I don't think it's impossible to understand incentives or the political system without empathy. Economists, social scientists, and other scholars all the time develop sophisticated analyses of these things even though much of their work involves analyzing the behavior of people whom they do not know and have little or no empathy for.


Your definition of empathy is far too narrow in my view. Anytime you consider anything from anyone else's perspective, that is an act of empathy. I think you are confusing empathy with sympathy. You do not need to know someone to have empathy. Also, empathy is also a matter of degree.

Economists for example use theories about how people will behave. If prices increase, people will buy less. Now, maybe a particular economist himself is very rich, and the good in question represents a tiny amount of his income, and his own demand for a particular good is fairly fixed (i.e. very inelastic). In that case, the demand of the economist would not himself be responsive to a price change. However, putting himself in the shoes of others whose demand profiles are different, he see's that there is a relationship between small changes in price and quantity demanded, even though this has no effect on his own quantity demanded.

Of course, the sort of empathy that must be used by this economist is very different than sympathy. He doesn't have to know or care about the people he is studying. But he does have to think about how they will act in response to price changes.
5.29.2009 12:13am

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