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Obama's Statements on Empathy and the Doctrinally Relevant vs. Doctrinally Irrelevant Distinction:
There has to be a natural limit on how many posts on empathy a single blog can host -- or at least I hope so -- but I wanted to elaborate on an interesting issue raised in the comment threads on the difference between what I have called "doctrinally relevant empathy" and "doctrinally irrelevant empathy." A number of readers claim that President Obama is referring to empathy only in the doctrinally relevant sense. According to this view, all Obama is saying is that he thinks judges should have a worldiness and understanding that allows them to apply legal doctrine accurately. Everyone really agrees with that point, the thinking goes, as doctrinally relevant empathy is not controversial. As a result, the entire debate over empathy is basically bogus, just a right-wing straw man.

  I wanted to focus the discussion a bit by pointing to what I take to be the two key descriptions of empathy that have led Obama's critics to believe that he is referring to something other than doctrinally relevant empathy. The first was what I believe is Obama's first extended discussion of the point, when he announced his vote against John Roberts in 2005. As he expressed it then, Obama spoke of empathy as the quality that kicks in when doctrine runs out:
  [W]hile adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, . . . what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.
  In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. . . . in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.
  It seems to me that Obama is not merely speaking of doctrinally relevant empathy here. He's not making a formalist claim that an accurate application of the law requires empathy to reach correct results. He seems to be speaking of empathy as something outside doctrine -- a quality that kicks in and can guide decisionmaking after doctrine has been exhausted and has not yielded an answer.

  That point is echoed in his definition of empathy when he announced Justice Souter's retirement a few weeks ago: he described empathy as the quality of "understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes." This doesn't sound to me like he is referrfing to legally relevant empathy; I think it is at the very least nonobvious that arriving at a "just outcome" through identifying with a person's "hopes" is doctrinally relevant.

  Anyway, I don't think the meaning of "empathy" is really such a vital issue. Like the John Roberts baseball analogy, it seems like a phrase that captures the public attention for its (superficial) simplicity rather than the depth of its insight. But I did want to point out the passages that have led critics to focus on the issue. While of course different people can look at language and reach different conclusions, I think there is indeed some basis for thinking, just based on President Obama's words, that Obama has something else in mind.
levisbaby:
Orin-

You seem to assume that the wingnuts fretting about "empathy" are acting in good faith. They aren't. It's pure theatre, political propaganda that has nothing to do with reality.
5.29.2009 2:50pm
richard1 (mail):
I would echo levisbaby's comments. Orrin makes a rational, principled argument about "empathy" and its use in the law (although I believe he is ascribing too much to Obama's comments). Limbaugh, Gingrich, etc (including the guy at NRO who argued that "we" Americans should refuse to pronounce Sotomayor the way that the judge pronounces it and instead insist on an anglicized "Sotomier" with the accent on the first syllable)would have come up with frivolous arguments no matter who the nominee had been.
5.29.2009 3:10pm
David Welker (www):
I think you are absolutely right about what Obama has in mind. He is not talking about cases where established precedent leads one to exercise empathy. He is talking about making new precedent using considerations of empathy.

And that is a good thing. Because empathy (or lack thereof) is going to have a major impact on your perceptions of how the world works. I think increased empathy will lead you to more accurate perceptions, decrease empathy to less accurate perceptions. And when I say increased empathy increases understanding, I mean in it in a rigorous sense, not as in knee-jerk favoritism.

I think that this charitable interpretation of how Obama is in fact using empathy in this sense is bolstered by the proximity of the word "empathy" to the phrase "one's broader perspectives on how the world works." All of the phrases here: (1) "one's deepest values," (2) "one's core concerns" and (3) "he depth and breadth of one's empathy" are all intimately related to a person's understanding of how the world works. (And thus our understanding of how a particular interpretation of law will work in the world.)


I think it is at the very least nonobvious that arriving at a "just outcome" through identifying with a person's "hopes" is doctrinally relevant.


I think it is quite clear that empathy, as used here, goes beyond merely identifying with a particular person's hopes. Obama uses the term "breadth" indicating a concern with having empathy for a broader set of people. That is, empathy for more than just those like yourself. He also is talking about depth, as in a deep, more rigorous understanding and not just some sort of superficial bias or favoritism.

I also think that what Obama is getting at here is undeniable. Often, people who lack empathy also often lack understanding. These things are definitely not unrelated. That is just how real people work in the real world. If you don't care about something, you probably are not going to understand it very well. To come to an understanding takes work and effort. People lacking empathy probably are not going to be interested in putting forth that effort, and thus are likely to have much less understanding.

So, yes, having rigorous (broad and deep) empathy for others is a critically important qualification for a Supreme Court justice, simply because lack of empathy equates with, on some level and to some degree, lack of understanding of reality. And a lack of understanding of reality in turn leads to bad new precedent when in fact the rare case comes along that calls for new precedent to be made.
5.29.2009 3:10pm
OrinKerr:
levisbaby,

Funny, that is exactly what those on the political right think about those on the left who use the word "wingnut."
5.29.2009 3:12pm
David Welker (www):
OrinKerr and levisbaby:

Orin: I think it is pretty undeniable that there has been plenty of "analysis" on the right that tries to simplistically equate "empathy" with favoritism and in general turn "empathy" into a scary word. It IS sort of cultish. Hating on empathy is a new (and I am sure temporary) fad on the right. Until the next obsession comes along.

levisbaby: I think using the term "wingnut" merely reinforces the dysfunctional partisan insanity. Obviously, your use is a drop in the bucket. But why play along? Of course, I am just as guilty at times.
5.29.2009 3:17pm
M N Ralph:
I think you're right that Obama's empathy is more than just what you describe as doctrinally relevant empathy. I understand him to basically be talking about wisdom as informed by an understanding and appreciation of how the law impacts people, especially common folk. I applaud that.
5.29.2009 3:25pm
DangerMouse:
David,

"Empathy" is just lib-speak for "thumb on the scale", or the blindfold off the eyes of Justice. It mirrors the typical liberal complaint that conservatives are angry, etc.

Liberals favor certain interest groups, and want judges to favor them as well. Minorities over non-minorities, women over men, government over individuals (except when dealing with the police), individuals over police, etc. Since libs think that judging is just an extension of legislation, it makes perfect sense that judges should favor certain groups just like legislators do.

In basic contract dispute X, libs want the woman to win over the man. The substance of the arguments is irrelevant. The same thing applies to minorities verses whites, etc.

It has been perfectly amusing to see libs try to shoehorn Obama's empathy criteria as something that a judge should do, notwithstanding the typical guise of Justice being blind.
5.29.2009 3:26pm
anomie:
I don't doubt that Obama had something else in mind, since I can't imagine him embracing your "doctrinally relevant"/"doctrinally irrelevant" division. While the law may specifically call for or make empathetic judgment doctrinally necessary in some instances, the notion that empathy is irrelevant in all other instances seems tendentious. Perhaps your intent is not an either/or dichotomy, and you recognize a third division -- i.e., that there is doctrinally relevant/necessary/unavoidable empathy, doctrinally irrelevant empathy (when doctrine is not exhausted and is sufficient to arrive at a decision), and the third form of judicial empathy which is (should be? must be?) employed when doctrine has been exhausted and has not yielded an answer. Regardless of your intent, I think that you are correct that Obama's intent was at least in part to address this third form of empathy.
5.29.2009 3:27pm
DangerMouse:
While of course different people can look at language and reach different conclusions, I think there is indeed some basis for thinking, just based on President Obama's words, that Obama has something else in mind.

Orin, it's called "I want you to favor my special interest groups." It's lib-speak for upholding abortion, favoring racist preferences, and all the other typical lib agendas. Obama is a Chicago politician first and foremost. This nuance over types of empathy is beyond ridiculous, because it is so divorced from reality. Libs want their thumbs on the scale of justice, period. That's what "empathy" means to them. It means Mr X. loses notwithstanding the substance of his arguments because he's a disfavored interest group, and if he wins that won't play well with the South Side of Chicago.
5.29.2009 3:35pm
richard1 (mail):
From DangerMouse:
Since libs think that judging is just an extension of legislation, it makes perfect sense that judges should favor certain groups just like legislators do.

Yep, thats what all of us libs do. Thats why when I go into court as I have been doing for the last 32 years, I just ask the judge to rule in my way because its fair and I just ignore the statute and all precedent. And it works out for me all the time because the liberal judges will just ignore everything if they are empathetic with my client.

The attacks on Sotomayor are hitting a new low. Limbaugh said today that her appointment was the equivalent of a Republican presdient nominating David Duke. And Gordon Liddy yesterday said that he hoped she would not attend key Supreme Court conferences while she was menstruating.
5.29.2009 3:40pm
q:

I think increased empathy will lead you to more accurate perceptions, decrease empathy to less accurate perceptions.

I'd have to disagree. I don't think empathy has any positive effect whatsoever in the accuracy of one's perceptions. Whether or not one's perceptions about the state of the world are accurate requires social science, not empathy. Moreover, what does empathy even mean? I'm absolutely certain Chief Justice Roberts has empathy, and perhaps quite a lot of it, though maybe not to your preferred classes of individuals. I also think Judge Posner is probably the least empathetic judge on the bench, but comes out with more reasonable decisions than any of the justices.

I would go even further and say consciously judging based on one's empathy could blind one to the always-present trade-offs of any particular rule of decision. For example, if empathy leads me to rule in favor of a plaintiff consumer over a defendant corporation, I may not realize the rule of decision may have a detrimental effect on other consumers and may in fact be mostly benefiting the victim's lawyers rather than the victim.
5.29.2009 3:41pm
sputnik (mail):
I want the RW to continue with the "empathy" thing .

The wingnuts think that using the Atwater/Rove school of thought they can turn it into the 2009 equivalent of "liberal".

The probem that they don't understand is that liberal was a fairly neutral word, and it opposite conservative as well.

The opposite of empathy on the other hand is "sociopath" or "asshole" or "cold-hearted".
5.29.2009 3:44pm
Steve H (mail):

Liberals Conservatives favor certain interest groups, and want judges to favor them as well. Minorities over lose to non-minorities, women over lose to men, government over individuals (except when dealing with the police), individuals over lose to police, etc. Since libs conservatives think that judging is just an extension of legislation, it makes perfect sense that judges should favor certain groups just like legislators do.

In basic contract dispute X, libs conservatives want the woman to win over lose to the man. The substance of the arguments is irrelevant. The same thing applies to minorities verses whites, etc.


Baseless, nonsensical generalizations are fun!
5.29.2009 3:46pm
byomtov (mail):
Funny, that is exactly what those on the political right think about those on the left who use the word "wingnut."

Orin,

How would you describe someone who makes an issue of how Sotomayor pronounces her name or her fondness for Puerto Rican food?

Is calling Obama, "the greatest living example of a reverse racist," rational discourse, or is it nutty?
5.29.2009 3:47pm
Steve H (mail):

I would go even further and say consciously judging based on one's empathy could blind one to the always-present trade-offs of any particular rule of decision.


Probably the only thing worse is unconsciously judging based on one's empathy.
5.29.2009 3:59pm
David Welker (www):
Orin: In case you were doubting my previous assertion, may I offer "DangerMouse" as exhibit A. I can empathize with people who use the term "wingnut" for these sorts of people. But, I think that just feeds this sort of ridiculousness, rather than does anything to foster rational discourse.
5.29.2009 4:14pm
George Smith:
There is apparently no legitimate or permissable basis for critically evaluating Judge Sotomayor, so lets all just go home.
5.29.2009 4:21pm
DangerMouse:
David,

Look, Obama voted against Roberts because he wants a pro-choice judge, notwithstanding that he said Roberts was qualified, had judicial temperment, and was a great judge. Empathy for him means, vote for abortion. It's the thumb on the scale. He's also brought up the Ledbetter case, which again means voting for the woman over the corporation despite the clear statutory language in the corporation's favor.

Did Sotomayer have empathy for the white firefighters who were racially discriminated against? Nope. Empathy to a lib doesn't mean an understanding of another person's situation, it means voting for a specific political interest group. Where's the empathy for the white firefighters in her terse 1 paragraph dismisal, criticized by her fellow judges? Where's the empathy for gun owners? The unborn?

Please, convince me that empathy has any meaning other than justice not being blind. I'd love to hear it.
5.29.2009 4:40pm
catchy:
I wrote a post from a cog sci perspective that I *think* roughly supports Orin's notion of doctrinally relevant empathy contra Somin's criticisms, here
5.29.2009 4:45pm
catchy:
Oh, and thanks to both of you for some stimulating posts.

Obviously some thought it was a little excessive, but I've enjoyed the give and take.
5.29.2009 4:48pm
ak:
Orin,

I agree with anomie. Although the sense of "empathy" at play in Obama's speech on then-Judge Roberts—i.e., empathy kicks in when doctrine runs out—does not seem to be doctrinally relevant as you define that category, neither does it fit in the doctrinally irrelevant category. In your death penalty example, the language of the statute is clear and there is plenty of "doctrine" to carry the day. Your example wouldn't fall within the 5% of cases to which Obama referred in the Roberts speech. There seems to be (at least) a third category.
5.29.2009 4:55pm
David Welker (www):
DangerMouse,

I have already discussed empathy in depth in comments to numerous posts, including this one. If you want to address or disagree with specific points made, that would be great. It would be a great improvements over comments that talk about "lib speak" or other such non-analysis.
5.29.2009 4:55pm
ShelbyC:
How 'bout that. Anything byomtov disagrees with is nutty. Fine, byomtov, who is the greatest living example of a reverse racist?
5.29.2009 4:59pm
ajk1:
Orin,

I agree with anomie. Although the sense of "empathy" at play in Obama's speech on then-Judge Roberts—i.e., empathy kicks in when doctrine runs out—does not seem to be doctrinally relevant as you define that category, neither does it fit in the doctrinally irrelevant category. In your death penalty example, the language of the statute is clear and there is plenty of "doctrine" to carry the day. Your example wouldn't fall within the 5% of cases to which Obama referred in the Roberts speech. There seems to be (at least) a third category.
5.29.2009 5:00pm
glangston (mail):
sputnik (mail):
I want the RW to continue with the "empathy" thing .

The wingnuts think that using the Atwater/Rove school of thought they can turn it into the 2009 equivalent of "liberal".

The probem that they don't understand is that liberal was a fairly neutral word, and it opposite conservative as well.

The opposite of empathy on the other hand is "sociopath" or "asshole" or "cold-hearted".



Unless of course your empathy lies with property owners or people who choose to protect themselves against violent crime.

Let's be honest here, the opposite of empathy is indifference and you're not talking about people who are indifferent, but people what are empathetic to different situations....unless you are one of those rare liberals ... a libtard.
5.29.2009 5:15pm
BZ (mail):
F.Y.I., here is an unreported decision by then-District Court Judge Sotomayor which may shed some light on the empathy question. McNeil v. Aguilos, 1996 WL 219637, May 1, 1996, S.D.N.Y.). I dredged up this case from some old files because I had a nagging feeling that I recalled something along these lines from many years ago.

In this case, Juanita McNeil, an African-American clerical worker at Bellevue Hospital contended pro sethat she was discriminated against because of her race and national origin by Tagalog-speaking nurses. Sotomayor dismissed the claim "because I see no prospect of inducing plaintiff to prosecute her own case." Earlier, Sotomayor had denied McNeil's and the Hospital's motions for summary judgment.

A surface reading of the case suggests that Sotomayor went a long way towards being "empathic" toward the pro se plaintiff, explaining her rights and obligations to her and repeatedly suggesting that she comply with discovery obligations. But there are aspects below the surface which make this a more interesting case.

McNeil alleged that Sotomayor was "personally biased" against her. *1. "Plaintiff's convictions on this subject have only grown more intractable with time." Id.

McNeil's claim was that Sotomayor should "recuse [her]self from the case: The judge is on the Board of Directors, or has been for more than 14 years on the Board of Directors of the Puerto Rican Legal Defense and Education Fund. That organization is committed [to] a bilingual posture, which is in direct opposition to the position that I'm taking in this lawsuit." *2-*3.

McNeil "contended that my position as a Board member of the Puerto Rican Legal Defense and Education Fund (the'Fund'), a non-profit organization which has advocated bilingualism in the workplace, created a conflict of interest. I directed plaintiff to formulate her request in the form of a written motion so that I could fully address her concerns." *3. McNeil did so, and Sotomayor "informed plaintiff that I had not been a member of the Fund's Board of Directors since I took the bench in October 1992."

In a written opinion, Sotomayor "explained that (1) my affiliation with the Fund had ended when I took the bench in 1992, (2) I had already left the Fund when its President publicly commented on a case involving bilingualism in the workplace, a case which plaintiff had cited in support of her equal protection claim, (3) a judge's past ties to an organization, standing alone, create no ground for disqualification under 28 U.S.C. s. 455 (4) no other ground for recusal existed in this case, and (5) mere disagreement over legal principles does not mean that a judicial officer is biased against a party." Id.

All seemingly normal stuff. Except that "the Fund" was a bit more involved in bilingualism than this decision lets on. See, e.g., Hernandez v. New York (89-7645), 500 U.S. 352 (1991), a case brought and fully prosecuted by "the Fund" in which bilingualism was a critical issue in the briefing. The majority opinion (Kennedy) said, for example: "Petitioner [i.e., "the Fund"] argues that Spanish-language ability bears a close relation to ethnicity, and that, as a consequence, it violates the Equal Protection Clause to exercise a peremptory challenge on the ground that a Latino potential juror speaks Spanish. He points to the high correlation between Spanishlanguage ability and ethnicity in New York, where the case was tried. We need not address that argument here, for the prosecutor did not rely on language ability without more, but explained that the specific responses and the demeanor of the two individuals during voir dire caused him to doubt their ability to defer to the official translation of Spanish-language testimony."

Though it probably does not go to the level of requiring recusal, Sotomayor was on the PRLDF Board at a time when this and other bilingualism cases were essential parts of the Fund's activities. Simply saying that the President commented on a similar case after she left the Board is a bit disingenuous. This may have simply been a case of a reluctant litigant, but perhaps McNeil had a bit more of a firm basis for her concern about the unfairness of the system than the ultimate opinion described.
5.29.2009 5:21pm
Officious Intermeddler:
I agree in the main with DangerMouse. There is nothing that will persuade me that when Obama speaks of "empathy" he is simply cloaking his desire for crude leftist bias in judicial decisionmaking in more palatable rhetoric.

This is who judicial liberals are. This is what they do.
5.29.2009 5:23pm
Officious Intermeddler:
Er, rather, there is nothing that will persuade me that when Obama speaks of "empathy" he is not simply cloaking his desire for crude liberal bias in judicial decisionmaking in more palatable rhetoric.
5.29.2009 5:23pm
byomtov:
Anything byomtov disagrees with is nutty.

No ShelbyC, not anything. But the things I cited are. So is Limbaugh's claim that Sotomayor is the liberal equivalent of David Duke.

But hey, you're entitled to think all that is just reasonable criticism, and I'm entitled to draw my own conclusions about you, and about those saying these things.
5.29.2009 5:28pm
OrinKerr:
This comment thread is making my head hurt due to its general inanity coming from both sides. Comments are closed.
5.29.2009 5:30pm