Today's Topic



Empathy and the Judicial System,
Part II

Part I
Part III

Natalia J. Garland

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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.



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 majority.
[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.



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 ever held.

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 prosperity.

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 reads:

" 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 unconstitutional.

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 the other.

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 appropriate."

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 bloom.

But even as a lower court judge, the nominee has made some very troubling rulings.

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 case.

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 firefighters?

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 exams.

It seems to me that in Ricci, Judge Sotomayor's empathy for one group of firefighters turned out to be prejudice against the others.

That is, of course, the logical flaw in the "empathy standard." Empathy for one party is always prejudice against another.

Judge Sotomayor, we will inquire into how your philosophy, which allows subjectivity into the courtroom, affects your rulings on issues like:

  • 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 system. [Sessions]
  • 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. [Sessions]
  • 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 expect. [Kyl]

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 insanity plea.

Regarding 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 law-and-order cases.

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.



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!

Throughout American 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 government.

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.



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 heart?

JUDGE 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?

JUDGE 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 sympathy.

SENATOR HATCH: Is judicial impartiality a duty or an aspiration?

JUDGE SOTOMAYOR: It's absolutely a duty, senator.
[End of quotes.]

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.



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 public policy.

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 deserve.

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 just that.
[End of quotes.]



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 nomination.

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.
[End of quote.]

For the purpose of today's discussion, here are some key sentences from Ricci's and Vargas' testimony.

  • 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 again..............stay sane.

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Copyright 2009 Natalia J. Garland