The Tyranny of Empathy: Feeling Our Pain versus Interpreting the Law

Despite insistent promises to lead the most transparent executive branch in human history, President Obama’s jurisprudential principles remain troubling obscure. This is all the more discomfiting since he has already successfully appointed two Justices to the bench and, if we wins the upcoming election, will likely also win an opportunity for one more, transforming the political balance of the branch. In order to excavate Obama’s constitutional commitments, it’s instructive to scrutinize the debate surrounding his first nominee.

President Obama’s announcement that Sonia Sotomayor was his nominee to the Supreme Court was met with all the predictable political frenzy and

media fanfare. Interest groups and party operatives dug in their heels in preparation for a tempestuous contest, one side cleverly staging a preemptive celebration and the other already reduced to angry recriminations. Given all the attention, it should seem incredible to us that Hamilton could once confidently assure his readers, in Federalist #78, that the judiciary was “incontestably…the weakest of the three departments of power”. It is now transparently clear that judicial appointments have become a thoroughly political exercise like so many others, with the unfortunate difference that the stakes are uncommonly high and the damage potentially done stubbornly resistant to reversal.

At the crux of the debate over Sotomayor’s confirmation was the crowning of empathy as the cardinal judicial virtue. As innocuous as a criterion as it might seem at first glance, the substitution of empathy for humility signifies a tectonic shift in the understanding the role of the judiciary trading its central characteristic, an independence from the people, for a principle of representation formerly reserved for the legislature. The preoccupation with empathy is largely a sleight of hand—empathy is a morally benign term that conceals the aggressive judicial activism and racially charged identity politics it introduces into judicial decision as a matter of principle.

Up until Sotomayor’s nomination, President Obama had managed to advertise his own judicial leanings as generally centrist—his jurisprudential outlook has been presented in moderate rhetorical tones emphasizing not only a respect for the letter of the law but also a genuine reverence for the original premises of our constitutional founding. However, the scant evidence available has always suggested that he was a radical liberal when it comes to judicial process. Today, Obama’s rhetorical posturing is considerably more cautious than it was before he became president focusing on the need for “pragmatists” rather than activists. Still, he has repeatedly defined a judicial pragmatist as one who prioritizes concrete political results over the integrity of judicial process. To this end, Obama has candidly replaced the central judicial virtue of humility with empathy:

[I]n the overwhelming number of Supreme Court decisions, [intellect is] enough. Good intellect, you read the statute, you look at the case law and most of the time, the law is pretty clear. Ninety-five percent of the time, Justice Ginsburg, Justice Thomas, Justice Scalia, they’re all gonna agree on the outcome.

But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is—what is in the justice’s heart. What’s their broader vision of what America should be. Justice Roberts said he saw himself just as an umpire but the issues that come before the Court are not sport, they’re life and death. And 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 criterion by which I’ll be selecting my judges.

For all the chatter about the expansion of the executive branch the real threat to the separation of powers is a new species of judicial prerogative. Here, empathy is understood to be the central virtue of a robust judicial statesmanship-it is indispensable as a willful corrective to the law, rather than an agent of its faithful interpretation. Humility is characteristically defined as a virtue of self-limitation but Obama’s empathy is meant to eclipse the confinements of the law so that judges can subordinate democratic process and legislative representation to “their broader vision of what America should be”. Humility is merely a judicial virtue borne out of the judge’s deference to the law—empathy is a moral virtue that marks the judge’s constraint only by the moral purposes the law serves, at least as he divines them.

In Federalist #49, Madison argues that empathy is the sentiment that most naturally characterized the relation between the legislature and the people: the “nature of their public trust implies a personal influence among the people” and with the people its members enjoy “connections of blood, of friendship, and of acquaintance”. On the other hand, the members of the judiciary are too “few in number” and too remote from the people to enjoy such a bond—they “can be personally known to a small part only of the people”. The switch from humility to empathy as the primary judicial virtue signifies a grand shift in the principle of representation from the legislature to the judiciary without any of the electoral checks that usually accompanies such representation.

Moreover, it’s also clear that the importance of empathy is meant as a repudiation of an old fashioned “equality before law”—empathy presupposes a personal connection with one group understood to be more deserving of justice and consideration than others. Of course, our capacity for empathy is not unbounded—our natural tendency is to empathize with some more than others, especially that which is familiar over the unfamiliar. It is in this spirit that Sotomayor publicly remarked: “I would hope that a wise Latino woman with the richness of her experiences would more often than not reach a better conclusion (as a judge) than a white male who hasn’t lived that life”. The animating principle of empathy is a love of one’s own but “equality before the law” is based on the submission of one’s own good to the blindness of justice. Sotomayor has a superior capacity for empathy because she comes from a more empathetic group than, say, Roberts or Scalia. Empathy is a sign of group identity but also group superiority—Sotomayor not only loves her own but believes her own to be better.

Sotomayor’s commitment to empathy would explain her otherwise inexplicable ruling in Ricci v. DeStefano in which she invalidated a promotional exam for firefighters in New Haven because too few minorities passed it. It is tempting, as many have done, to attack her position as constitutionally unprincipled but that depends upon whose principles and whose Constitution is being discussed. Sotomayor would argue (with admirable candor subsequently curtailed) that she ruled on behalf of the only group she could identify with, or that she found deserving of special protection. Sotomayor’s jurisprudential philosophy is not merely guided by empathy but rather places empathy above the law—she paradoxically offers a principled defense of relaxing our reliance upon purely constitutional principle.

The significance assigned to empathy undercuts the independence of the court by creating a de facto constituency—Sotomayor will be a representative of her own group’s idiosyncratic cultural attachments. Her job is to speak for disadvantaged Hispanics against a Constitution that has often enshrined their cruel deprivations. A politics of empathy results in a kind of jurisprudential will to power—in the absence of any hope for intellectual objectivity or a common moral good there are only competing perspectives vying for dominance. As Sotomayor remarked in a speech in 2001, the goal of impartiality for judges is a mere “aspiration” that ignores the “inherent physiological and cultural differences” that divide us and that inexorably defines our varying perspectives. Empathy turns out be a remarkably banal euphemism for an aggressive politics of race. Also, it is narrowly defined to only include progressive moral sensibilities—it would be amazing to hear a liberal attribute the same empathy to Clarence Thomas since he grew up a poor black man in Georgia.

In many ways, the pick of Sotomayor was intended as a synthesis of the two strains of progressive constitutionalism dominant today. On the one hand, legal realists deny the very possibility of judicial objectivity—each judge is so trapped by his own limited intellectual and cultural horizon that every decision is merely an expression of his own peculiar attachments. On the other hand, advocates of a “Living Constitution” often describe the judge as a kind of moral umpire—his role is to use the Constitution as a canvas to paint and re-paint the ever changing landscape of our collective moral intuitions. The first mode of constitutional interpretation is amazingly solipsistic and reduces the judge to a representative of his own class’ moral commitments. The other view more conspicuously subordinates law to morality but broadens the intellectual breadth of the judge—his activism is on behalf of the majority rather than merely his own class. The great trick of empathy is that it captures both the dominance of morality over law and class perspective over morality while maintaining some sense of moral objectivity—some classes are objectively more empathetic than others and more deserving as the object of the empathy of others. Sotomayor has more empathy than other judges and warrants more from us as well.

Whatever legislative changes Obama manages to push through in a second term, even the more spectacular ones that promise to haunt us well beyond his presidential tenure, none will have the lasting, transformative impact of what he surreptitiously accomplishes through the courts. If Republicans can’t regain the White House, they can at least bring Obama’s attempt to create policy outside the theatre of civic deliberation to the attention of the public. It is likely Obama will have at least one if not two more opportunities to put his own ideological stamp on the Supreme Court. A spirited and principled debate will wound the current administration in the confirmation battles to come and might permanently expose the anti-democratic impulses of his party’s attraction to racial preferences and judicial activism at the expense of equality before the law and consent.

Category: Jury Duty