What’s empathy got to do with it? (Thoughts on Sonia Sotomayor’s nomination.)
When asked what he was looking for in a US Supreme Court nominee to take Justice Soutar’s seat, President Barack Obama stated “We need somebody who’s got the heart to recognize — 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 criteria by which I’m going to be selecting my judges.”
As Walter Williams wrote in the May 20, 2009 edition of Capitalism Magazine:
“What is the role of a U.S. Supreme Court justice? A reasonable start for an answer is the recognition that our Constitution represents the rules of the game. A Supreme Court justice has one job and one job only namely; he is a referee. There is nothing complicated about this. A referee’s job, whether he is a football referee or a Supreme Court justice, is to know the rules of the game and make sure that they are evenly applied without bias. Do we want referees to allow empathy to influence their decisions? The conservative view is thus that empathy has no place on the bench, and that a judge is little more than a referee.”
I disagree entirely.
Empathy as a qualification for a jurist, it gives republicans goose bumps and can produce mixed results. We expect judges to resist empathy and impose the law evenhandedly. We are appropriately outraged when a judge goes easy on a defendant with whom he identifies – the suburban white kid, say, who gets community service, whereas his urban black counterpart goes off to jail.
If empathy can handicap judges, however, it can elevate and enlarge justices. Unlike trial court or even appellate judges, Supreme Court justices are free to regard precedent as subject to challenge, and they act not merely to apply existing judicial norms, but rather to question and sometimes overturn them. Doing that well may require experience outside the judicial system and identification with those caught up in it.
In recent history, one court is particularly remembered – by critics and admirers – for its empathy and its consciousness of its outsize place in society. From 1953 to 1969, the court led by Chief Justice Earl Warren drew upon the varied backgrounds of its justices and the singular character of its chief to craft a remarkable body of work.
Warren himself drew upon his life as well as the law in his decision making. A native of Los Angeles who grew up in a modest Bakersfield home, he instinctively sympathized with working people and was forever suspicious of big business, a relic of early summers working for the Southern Pacific.
He started his career as a prosecutor. Partly as a consequence, the Warren court set high standards for those responsible for arresting, charging, and trying defendants.
He also won seven elections. After successful campaigns for Alameda County district attorney and California attorney general, he served three terms as California’s governor. It’s no surprise that such a successful politician had enormous confidence in voters. Following his lead, the Warren court eliminated poll taxes and voter literacy tests, and imposed equal representation on state legislative elections, effectively equalizing the voting power of urban blacks and rural whites.
Warren was a stepfather and father, devoted to his six children, and his parental instincts were memorably expressed as he labored over his most important opinion, Brown v. Board of Education. “To separate [Negro children] from others of their age solely because of their color puts a mark of inferiority not only on their status in the community but upon their little hearts and minds,” he wrote in an early draft. “Little hearts and minds” leaves no question about whom he identified with.
Less remembered is Warren’s long struggle to find a constitutional basis for restricting pornography. Warren was raised in Progressive-era California and absorbed that movement’s intolerance for vice.
Perhaps least well known about Warren’s background and its influence on his work was his deep, personal identification with the victims of violence. Few criticisms gave him greater offense than that his court was “soft on crime,” a charge that Richard M. Nixon, Warren’s nemesis, lobbed at the court in his 1968 campaign for the presidency. It is no wonder that Warren was angered by the accusation: His father had been murdered – beaten to death with an iron pipe in the family home in Bakersfield in May 1938, while Earl was in the midst of his campaign for attorney general. The assailant was never found.
To some observers, the Warren court’s rulings suggested too much empathy with criminals at the expense of police and prosecutors. Warren never did see those cases that way. To him, they were natural expectations of professionalism that he was confident police and prosecutors could meet without endangering their power to convict the guilty. His work in criminal justice reflected two strains of his experience that he never regarded as contradictory – the belief in high standards for law enforcement and the pain of having a loved one killed.
In the 16 years that he served as chief justice, the record Warren compiled consisted of this:
1] Schools and other institutions were desegregated;
2] Poor defendants were given access to lawyers;
3] States were ordered to discard voting systems and rules that intentionally disenfranchised blacks;
4] Police were reminded that the Constitution requires warrants before they may enter and ransack a home;
5] Schools were ordered to stop reading government-approved prayers to children;
6] States were forbidden from denying married couples the right to purchase contraceptives.
Empathy for victims, defendants, and others encouraged those rulings; the law and the nation were the beneficiaries.
