Empathy and the Judicial System,
Natalia J. Garland
Everyone should have empathy. However, some people are not capable
of empathy, and some are capable of empathy for certain groups or
individuals but not for all. Moreover, it is a mistake to conclude
that empathy should be equally required of all professions, or that
empathy can be evenly or similarly applied in all professions. If
empathy were overly emphasized or misapplied in our judicial
system, then the consequences would be contrary to law and order
and to the general welfare of all citizens.
Empathy is not
necessarily an altruistic or a democratic quality. The application
of empathy depends on the maturity and capacity of each
individual. If a social worker, for example, has empathy for
drug addicts but finds it difficult to have empathy for a
drug-addicted mother who gave birth to a baby that tested positive
for heroin, that does not diminish the empathy which the worker
feels for other drug addicts. Empathy can be learned, increased,
or expanded through training, study, introspection, supervision,
and by using empathic others as role-models.
If an individual
has empathy for a certain group of people, but lacks empathy for
other groups or even has animosity toward other groups or toward
mainstream society, and if that individual is politically-oriented,
then empathy can take on the appearance of bias. And, some
politically-oriented individuals are indeed biased, self-serving,
and not capable of empathy for anyone. If an empathic individual
becomes a political advocate for one group, while devaluing the
worthiness of or restricting the rights of other groups--such as
seems to be true of identity politics--then advocacy seems to
mutate into feelings of entitlement and superiority. Empathy is
now lost, and entire organizations or systems are contaminated with
a distored worldview.
Let's review Linda
Chavez' definition of identity politics. This definition is
important because it seems to allow that identity politics not only
obstructs empathy but also fairness and impartiality.
DEFINITION OF IDENTITY POLITICS
Identity politics involves a sense of grievance against the
majority, a feeling that racism permeates American society and its
institutions and the belief that members of one's own group are
victims in a perpetual power struggle with the
[End of quote.]
In Part I of
this essay, I quoted the opening statements of Senator Jon Kyl and
Senator Lindsey Graham. These statements were given at the
confirmation hearings of Judge Sonia Sotomayor who was nominated
for Supreme Court Judge by President Barack Obama. Let's continue
with the opening statement of Senator Jeff Sessions. Then, I will
attempt to bring together the concepts of empathy, fairness, and
impartiality in America's judicial system.
SENATOR JEFF SESSIONS' OPENING STATEMENT
Before I begin, I want to thank Chairman Leahy for his openness and
willingness to work together on the procedures for this hearing
I hope it will be viewed as the best hearing this Committee has
Judge Sotomayor, I join Chairman Leahy in welcoming you here today.
This hearing marks an important milestone in your distinguished
legal career. I know your family is proud, and rightfully so. It is
a pleasure to have them with us today.
I expect this hearing and resulting debate to be characterized by a
respectful tone, a discussion of serious issues, and a thoughtful
dialogue, and I have worked hard to achieve that from day one.
I have been an active litigator in federal courts for the majority
of my professional life. I have tried cases in private practice, as
a federal prosecutor with the Department of Justice, and as
Attorney General of the State of Alabama.
The Constitution and our great heritage of law are things I care
deeply about—-they are the foundation of our liberty and
This nomination hearing is critically important for two reasons.
First, Justices on the Supreme Court have great responsibility,
hold enormous power, and have a lifetime appointment.
Just five members can declare the meaning of our Constitution,
bending or changing its meaning from what the people intended.
Second, this hearing is important because I believe our legal
system is at a dangerous crossroads.
Down one path is the traditional American legal system, so admired
around the world, where judges impartially apply the law to the
facts without regard to their own personal views.
This is the compassionate system because this is the fair system.
In the American legal system, courts do not make the law or set
policy, because allowing unelected officials to make laws would
strike at the heart of our democracy.
Here, judges take an oath to administer justice impartially, which
"I...do solemnly swear that I will administer justice without
respect to persons, and do equal right to the poor and to the rich,
and that I will faithfully and impartially discharge and perform
all the duties incumbent upon me...under the Constitution and laws
of the United States. So help me God."
These principles give the traditional system its moral authority,
which is why Americans respect and accept the rulings of
courts—-even when they lose.
Indeed, our legal system is based on a firm belief in an ordered
universe and objective truth. The trial is the process by which the
impartial and wise judge guides us to the truth.
Down the other path lies a Brave New World where words have no true
meaning and judges are free to decide what facts they choose to
see. In this world, a judge is free to push his or her own
political and social agenda. I reject this view.
We have seen federal judges force their own political and social
agenda on the nation, dictating that the words "under
God"be removed from the Pledge of Allegiance and barring
students from even silent prayer in schools.
Judges have dismissed the people's right to their property, saying
the government can take a person’s home for the purpose of
developing a private shopping center.
Judges have—-contrary to the longstanding rules of war—created a
right for terrorists, captured on a foreign battlefield, to sue the
United States government in our own courts.
Judges have cited foreign laws, world opinion, and a United Nations
resolution to determine that a state death penalty law was
I'm afraid our system will only be further corrupted as a result of
President Obama’s views that, in tough cases, the critical
ingredient for a judge is the "depth and breadth of one's
empathy," as well as "their broader vision of what
America should be."
Like the American people, I have watched this for a number of
years, and I fear this "empathy standard" is another step
down the road to a liberal activist, results-oriented, and
relativistic world where:
- Laws lose their fixed meaning,
- Unelected judges set policy,
- Americans are seen as members of separate groups rather than
simply Americans, and,
- Where the constitutional limits on government power are ignored
when politicians want to buy out private companies.
So, we have reached a fork in the road. And there are stark
differences between the two paths.
I want to be clear:
I will not vote for—-no senator should vote for—-an individual
nominated by any President who is not fully committed to fairness
and impartiality towards every person who appears before them.
I will not vote for—-no senator should vote for—-an individual
nominated by any President who believes it is acceptable for a
judge to allow their own personal background, gender, prejudices,
or sympathies to sway their decision in favor of, or against,
parties before the court.
In my view, such a philosophy is disqualifying.
Such an approach to judging means that the umpire calling the game
is not neutral, but instead feels empowered to favor one team over
Call it empathy, call it prejudice, or call it sympathy, but
whatever it is, it is not law. In truth it is more akin to
politics. And politics has no place in the courtroom.
Some will respond, "Judge Sotomayor would never say that it's
acceptable for a judge to display prejudice in a case."
But, I regret to say, Judge Sotomayor has outlined such a view in
many, many statements over the years.
Let's look at just a few examples:
We've all seen the video of the Duke University panel where Judge
Sotomayor says "--it is [the] Court of Appeals where policy is
made. And I know, and I know, that this is on tape, and I should
never say that."
And during a speech 15 years ago, Judge Sotomayor said, "I
willingly accept that we who judge must not deny the differences
resulting from experience and heritage but attempt...continuously
to judge when those opinions, sympathies, and prejudices are
And in the same speech, she said, "my experiences will affect
the facts I choose to see as a judge."
Having tried cases for many years, these statements are shocking
and offensive to me.
I think it is noteworthy that, when asked about Judge Sotomayor's
now-famous statement that a "wise Latina" would come to a
better conclusion than others, President Obama, White House Press
Secretary Robert Gibbs, and Supreme Court Justice Ginsburg declined
to defend the substance of the nominee’s remarks.
They each assumed that the nominee misspoke. But the nominee did
not misspeak. She is on record making this statement at least five
times over the course of a decade.
These are her own words, spoken well before her nomination. They
are not taken out of context.
I am providing a copy of the full text of these speeches to the
hearing room today.
Others will say that, despite these statements, we should look to
the nominee's record, which they characterize as moderate. People
said the same of Justice Ginsburg, who is now considered to be one
of the most activist judges in history.
Some senators ignored Justice Ginsburg's philosophy and focused on
the nominee's judicial opinions. But that is not a good test
because those cases were necessarily restrained by precedent and
the threat of reversal from higher courts.
On the Supreme Court, those checks on judicial power will be
removed, and the judge's philosophy will be allowed to reach full
But even as a lower court judge, the nominee has made some very
I am concerned by the nominee’s decision in Ricci, the New Haven
Firefighters case--recently reversed by the Supreme Court--where
she agreed with the City of New Haven’s decision to change its
promotion rules in the middle of the game.
Incredibly, her opinion consisted of just one substantive paragraph
of analysis concerning the major legal question involved in the
Judge Sotomayor has said that she accepts that her opinions,
sympathies, and prejudices will affect her rulings. Could it be
that her time as a leader of the Puerto Rican Legal Defense and
Education Fund provides a clue as to her decision against the
While the nominee was Chair of the Fund's Litigation Committee,
the organization aggressively pursued racial quotas in city hiring
and, in numerous cases, fought to overturn the results of promotion
It seems to me that in Ricci, Judge Sotomayor's empathy for one
group of firefighters turned out to be prejudice against the
That is, of course, the logical flaw in the "empathy
standard." Empathy for one party is always prejudice against
Judge Sotomayor, we will inquire into how your philosophy, which
allows subjectivity into the courtroom, affects your rulings on
- Abortion, where an organization in which you were an active
leader argued that the Constitution requires that taxpayer money be
used for abortions;
- Gun control, where you recently ruled that it is "settled
law" that the Second Amendment does not prevent a city or
state from barring gun ownership;
- Private property, where you have already ruled that the
government could take property from one pharmacy developer and give
it to another; and
- Capital punishment, where you personally signed a statement
opposing the reinstatement of the death penalty because of the
"inhuman[e] psychological burden" it places on the
offender and his or her family.
I hope the American people will follow these hearings closely.
They should learn about the issues, and listen to both sides of the
argument. And, at the end of the hearing, ask: 'If I must one day
go to court, what kind of judge do I want to hear my case?
'Do I want a judge that allows his or her social, political, or
religious views to change the outcome?
'Or, do I want a judge that impartially applies the law to the
facts, and fairly rules on the merits, without bias or prejudice?'
It is our job to determine on which side of that fundamental divide
the nominee stands.
[End of quote.]
Here are some key
sentences from Sessions' opening statement, followed by a paragraph
from Kyl's statement (the full text of which appears in Part I).
- This is the compassionate system because this is the fair
- Indeed, our legal system is based on a firm belief in an
ordered universe and objective truth. The trial is the process by
which the impartial and wise judge guides us to the truth.
- Of course, every person should have empathy, and in certain
situations, such as sentencing, it may not be wrong for judges to
be empathetic. The problem arises when empathy and other biases or
prejudices that are 'in the judge's heart' become 'the critical
ingredient' to deciding cases. As Judge Paez explained, a judge's
prejudices, biases, and passions should not be embraced—-they must
be 'set aside' so that a judge can render an impartial decision as
required by the judicial oath and as parties before the court
How is a fair
system of laws also a compassionate (or empathic) system? Can we
say that empathy is already built into America's judicial system,
aside from any judge's personal capacity for empathy? The
following are some ways in which empathy and fairness seem to merge
in our courts: (1) Innocent until proven guilty. (2) The right to
a jury of peers. (3) The right to call forth witnesses. (4)
The possibility of mandate to a rehabilitation program. (5) The
law-and-order cases, application of the law might depend more on
the jurors and on the lawyer's ability to defend or prosecute the
case. Senator Sessions stated that an impartial judge guides us
to an objective truth. In other words, there are certain facts to
be uncovered in order to know the truth about what really
happened--whether or not a crime was committed and who committed
it. Sessions also referred to an ordered universe. This could be
interpreted to mean that things do not just happen. People make
decisions and perform actions. There are events and consequences
that result from our decision-making processes. Once the truths
are known, then the guilty person can be sentenced (or the
not-guilty person can be released).
Senator Kyl stated
that empathy might be used in the sentencing process in certain
cases. This would seem to be appropriate in certain cases in
which the convicted person could be sentenced to probation instead
of prison, and/or mandated to a rehabilitation program (alcohol or
drug treatment, anger management, parenting group). Although a
judge cannot use empathy in a therapeutic sense, she might
nevertheless become empathically attuned or receptive to the
individual's motives, circumstances, level of acceptance of
responsibility for self and actions, and expressions of remorse
while she (the judge) determines fair and lawful consequences in
This seems to be
very different, however, from President Obama's requirement of
judicial empathy. When Judge David Souter said he was going to
retire, Obama responded with the following statement regarding how
he would choose Souter's replacement.
PRESIDENT OBAMA ON JUDICIAL EMPATHY
I will seek someone who understands that justice isn't about some
abstract legal theory or footnote in a casebook; it is also about
how our laws affect the daily realities of people's lives, whether
they can make a living and care for their families, whether they
feel safe in their homes and welcome in their own nation. I view
that quality of empathy, of understanding and identifying with
people's hopes and struggles, as an essential ingredient for
arriving at just decisions and outcomes.
[End of quote.]
Obama's standard is
both vague and misapplied. He seems to refer to law as an
unreachable or disposable abstraction, or as a mere footnote to
the greater reality of empathy--and as having little to do with
everyday life. He seems to want judges to have empathy for
people's hopes and struggles--but this is more appropriate
for social workers and psychotherapists. He seems to be concerned
about people's ability to make a living and care for their
families--but this pertains to the economy and the job market.
He seems to want people to feel safe in their homes and welcome
in their own nation--but this depends on fair and impartial
application of the law!
history, there have been concerns about the separation of church
and state. In the Obama presidency, however, those concerns might
need to shift to the separation of psychotherapy and state. That
is to say, to the misapplication and mutation of psychotherapeutic
attitudes and skills to the operations of the courts and
Next, let's turn to
some remarks by Judge Sotomayor herself regarding the Obamain
judicial standard. The quotations below are somewhat patched
together due to the difficulty in finding complete transcript
texts of the confirmation hearings. The quotations are accurate,
but have been excerpted.
REMARKS BY JUDGE SONIA SOTOMAYOR
SENATOR KYL: Do you agree with him [President Obama], that the law
only takes you the first 25 miles of the marathon and that that
last mile has to be decided by what is in the judge's
SOTOMAYOR: No, sir. That's--I don't--wouldn't approach the
issue of judging in the way the President does.
SENATOR KYL: Have you always been able to have a legal basis for
the decisions that you have rendered and not have to rely upon some
extra-legal concept, such as empathy or some other concept other
than a legal interpretation or precedent?
SOTOMAYOR: Exactly, sir. We apply law to facts. We don't apply
feelings to facts.
JUDGE SOTOMAYOR: I can state what I believe very simply. Life
experiences help the process of listening and understanding an
argument. The law always directs the results of the case. A judge
cannot decide cases on the basis of personal feelings, biases or
HATCH: Is judicial impartiality a duty or an
SOTOMAYOR: It's absolutely a duty, senator.
If we trace the
above vein of thought, then empathy (psychotherapeutic empathy) is
an extra-legal concept--something outside the judgment of
facts and truth and outside the application of laws. However, a
judge's life experiences could aide the process of
listening and understanding an argument. I would add that an
empathic attunement or receptiveness could be helpful to
listening to and considering the recommendations of a probation
officer or social worker, and to sentencing in certain cases.
The crux is to:
(1) Distinguish between the psychotherapeutic skill of empathy (a
major skill in the professions of social work and psychotherapy)
and the limited applications of judicial empathic attunement to
listening and sentencing. (2) Understand that empathy is not the
same as sympathy, pity, compassion, or other feelings and
attitudes. (3) Prevent empathy from mutating into bias or identity
politics. (4) Accept that judicial empathic attunement is
applied within the boundaries of fairness and impartiality. (5)
Accept that the capacity for empathy varies from one individual to
another. (6) Apply law to facts.
Perhaps the main
concern about empathy is to: (5) Accept that the capacity for
empathy varies from one individual to another. The practice of
empathy means that the judge must have a high level of
self-awareness regarding her inner thoughts and feelings. Let's
go back to Senator's Kyl's statement: "As Judge Paez
explained, a judge's prejudices, biases, and passions should not be
embraced—-they must be 'set aside' so that a judge can render an
impartial decision as required by the judicial oath and as parties
before the court expect." In order to set aside biases, etc.,
each individual must first have an awareness of such feelings and
attitudes. If biases exist at an unconsciousness level, then
they cannot be controlled.
So far, the focus
has been on whether judges should have empathy and how such empathy
should be applied. Let's now focus on defendants and plaintiffs.
Does society want empathy from the courts? Two firefighters
testified at the Sotomayor confirmation hearings, Frank Ricci and
Ben Vargas. They were involved in the Ricci vs. DeStefano case.
Let's read what they said about the law, politics, and fairness.
TESTIMONY OF FRANK RICCI (EXCERPTS)
Americans have the right to go into our federal courts and have
their cases judged based on the Constitution and our laws, not on
politics or personal feelings.
The lower court's belief that citizens should be reduced to racial
statistics is flawed. It only divides people who don't wish to be
divided along racial lines. The very reason we have civil service
rules is to root out politics, discrimination and nepotism.
Our case demonstrates that these ills will exist if the rules of
merit and the law are not followed.
Our courts are the last resorts for Americans whose rights are
violated. Making decisions on who should have command positions
solely based on statistics and politics, where the outcome of the
decision could result in injury or death, is contrary to sound
The more attention our case got, the more some people tried to
distort it. It bothered us greatly that some perceived this case as
involving a testing process that resulted in minorities being
completely excluded from promotions.
That was entirely false, as minority firefighters were victimized
by the city's decision as well. As a result of our case, they
should now enjoy the career advancement that they've earned and
Enduring over five years of court proceedings took its toll on us
and our families. That case was longer--was no longer just about
as, but about so many Americans who have lost faith in the court
system. [This paragraph is awkward, but that is how it appears
in the transcript.]
When we finally won our case and saw the messages we received from
every corner of the country, we understood that we did something
important together. We sought basic fairness and evenhanded
enforcement of the laws, something all Americans believe in.
In our profession, we do not have the luxury of being wrong or
having long debates. We must be correct the first time and make
quick decisions under the pressure of time and rapidly unfolding
events. Those who make these decisions must have the knowledge
necessary to get it right the first time.
Unlike the judicial system, there are no continuances, motions or
appeals. Errors and delays can cost people their lives. In our
profession, the racial and ethnic makeup of my crew is the least
important thing to us and to the public we serve. I believe the
countless Americans who had something to say about our case
understand that now.
Firefighters and their leaders stand between their fellow citizens
and catastrophe. Americans want those who are the most
knowledgeable and qualified to do the task. I am willing to risk
and even lay down my life for fellow citizens, but I was not
willing to go along with those who place racial identity over these
more critical considerations.
I am not a lawyer, but I quickly learned about the law as it
applies to this case. Studying it as much I studied for my exam, I
thought it clear that we were denied our fundamental civil rights.
I expected Lady Justice with the blindfold on, and a reasoned court
from a federal court of appeals telling me, my fellow plaintiffs
and the public that the court's view on the law--what the court's
view on the law was and do it in an open and transparent way.
Instead, we were devastated to see a one paragraph unpublished
order summarily dismissing our case, and indeed even the notion
that we had presented important legal issues to that court of
appeals. I expected the judges who heard my case along the way to
make the right decisions, the ones required by the rule of law.
Of all that has been written about our case, it was Justice Alito
who best captured our own feelings. We did not ask for sympathy or
empathy. We asked only for even-handed enforcement of the law and
prior to the majority justice opinion in our case, we were denied
[End of quotes.]
TESTIMONY OF BEN VARGAS (EXCERPT)
Senators of both parties have noted the importance of this
proceeding, because decisions of the United States Supreme Court
greatly impact the everyday lives of ordinary Americans. I suppose
that I and my fellow plaintiffs have shown how true that is. I
never envisioned being a plaintiff in a Supreme Court case, much
less one that generated so much media and public interest. I am
Hispanic and proud of their heritage and background that Judge
Sotomayor and I share. And I congratulate Judge Sotomayor on her
But the focus should not have been on me being Hispanic. The focus
should have been on what I did to our new promotion to captain and
how my own government and some courts responded to that. In short,
they didn't care. I think it important for you to know what I did,
that I played by the rules and then endured a long process of
asking the courts to enforce those rules.
I am the proud father of three young sons. For them I sought to
better my life, and so I spent three months in daily study,
preparing for an exam that was unquestionably job-related. My wife,
a special education teacher, took time off from work to see me and
our children through this process.
I knew we would see little of my sons during these months, when I
studied every day at a desk in our basement, so I placed
photographs of my boys in front of me. When I would get tired and
wanted to stop--wanted to stop, I would look at the pictures,
realize that their own future depended on mine, and I would keep
going. At one point I packed up and went to a hotel for a day to
avoid any distractions, and those pictures came with me.
I was shocked when I was not rewarded for this hard work and
sacrifice, but I actually was penalized for it. I became not Ben
Vargas, the fire lieutenant who proved themselves qualified to be
captain, but a racist statistic. I had to make decisions whether to
join those who wanted promotions to be based on race and ethnicity
or join those who would insist on being judged solely on their
qualifications and the content of their character.
For the purpose of
today's discussion, here are some key sentences from Ricci's and
- I expected Lady Justice with the blindfold on... [Ricci]
- We did not ask for sympathy or empathy. We asked only for
even-handed enforcement of the law... [Ricci]
- But the focus should not have been on me being Hispanic. The
focus should have been on what I did... [Vargas]
- I was shocked when I was not rewarded for this hard work and
sacrifice, but I actually was penalized for it. [Vargas]
The Ricci vs.
DeStefano case also presents the deeper issue of whether
affirmative action remains necessary and fair, or whether it has
outlived its usefulness and now penalizes people belonging to the
mainstream or to other groups outside a particular quota system.
Judge Sotomayor had ruled against Ricci and the other New Haven
firefighters involved in the case, but her decision was overturned
by the Supreme Court to which she now aspires.
It is possible that
society does not especially want empathy from judges--or the risk
of empathy for some but not for all. Perhaps society wants
fairness and impartiality above empathy--or above the risk of
empathy mutating into bias or identity politics. Some members of
society want Lady Justice with the blindfold on--a fair,
no-nonsense, no-excuses judge. This would be in stark contrast to
Obamian judicial philosophy. And, Judge Sotomayor herself has
said that she "wouldn't approach the issue of judging in the
way the President does."
In summary of Part
II, I have attempted to point out that empathy seems to blend into
fairness in the American justice system, illustrated by certain
rights which are common to all citizens and which we probably take
for granted: such as the concept of innocent until proven guilty.
I have also put forth that empathic attunement might aide judges as
listeners, and might aide the sentencing process in certain
law-and-order cases. Such empathic attunement, however, must
always be applied within the boundaries of fairness and
impartiality. The difficulty with judicial empathy is that it
requires a high level of self-awareness and that it risks mutation
into bias or identity politics. Finally, I questioned if all
people really want empathy from the courts, or if people want
fairness and impartiality foremost.
Perhaps the most
startling conclusion about judicial empathy is that among the
Republican senators and the witnesses quoted in today's essay, none
of them agree with President Obama's judicial philosophy. No one,
except Obama, thinks that empathy or any variation thereof
(judging from the heart, etc.) should be an utmost qualification
for or a primary focus of judges. Judge Sotomayor's background and
philosophy has been rightfully scrutinized. She will, despite
drawbacks and doubts, become a Supreme Court Associate Judge. She
must, nonetheless, be held accountable to her words that she
"...wouldn't approach the issue of judging in the way the
President does." (Written 08/03/09: bibliography available.)
Until we meet