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.
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