Today's Topic



Empathy and the Judicial System,
Part III

Part I
Part II

Natalia J. Garland

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It seemed to me that my notes on the Sonia Sotomayor Confirmation Hearings were more thorough than my comments on the concept of empathy--not just on my ideas about judicial empathy, but on the attitude, skill, and purpose of empathy itself. So, I decided to continue the topic and add a Part III to my previous work.

Today's essay will present a contrast in content and style between judicial focus and language and that of social work and psychotherapy. First, I will present Senator Orin G. Hatch's (R-Utah) statement to the Senate Judiciary Committee on why he was voting 'no' on the confirmation of Judge Sotomayor. Second, I will present a section from the book, Relationship: The Heart of Helping People, by Helen Harris Perlman. Third, I will refer to the work of Carl Rogers for further clarification. All quotation selections are straightforward and seem self-evident regarding their significance for any study on the concerns about judicial empathy. Therefore, I will add only few comments for cohesion and summary.

Most Republicans voiced objections to the confirmation of Sotomayor in a manner very similar to Hatch's. Hatch presents the concerns about bias, Sotomayor's past speeches, and her judgment of certain cases. He concisely states the Republican concerns about impartial judgment, the Ricci vs. DeStefano case, the right to private property, and the right to keep and bear arms. Other especially noteworthy statements were given by Senators Crapo, Kyl, Sessions, and Wicker. Senator Kyl's statement is accessible (at the time of this writing) from his Senate website; the other statements seem not to be available in text.



Thank you, Mr. Chairman. I want to commend you and the distinguished ranking member, Senator Sessions, for conducting a fair and thorough confirmation hearing on the nomination of Judge Sonia Sotomayor to replace Justice David Souter. I was especially pleased when Judge Sotomayor said the hearing was as gracious and fair as she could have asked for.

I come to the confirmation process wanting to vote for a President's nominees and the prospect of a woman of Puerto Rican heritage serving on the Supreme Court says a lot about America. President Obama could have chosen a Hispanic nominee that all Senators could support. He chose not to do so and I regret that I cannot support this nominee.

Qualifications for judicial service include legal experience and Judge Sotomayor has an impressive record of academic and professional achievement. She has a compelling life story and an obvious commitment to public service. But qualifications also include the more important element of judicial philosophy, or a nominee's understanding of the power and proper role of judges in our system of government. Judge Sotomayor's approach to judging is more important to me than her resume.

In her opening statement at the hearing, Judge Sotomayor said that her judicial philosophy is simply fidelity to the law. Unfortunately, that phrase begs rather than answers the important questions. Her hearing testimony and answers to post-hearing written questions must be viewed against the rest of her record including her speeches, articles, and cases.

Some have encouraged us to selectively consider Judge Sotomayor's record, looking only at her cases and ignoring her speeches and articles. Judge Sotomayor, however, certainly took great care and gave great thought to her speeches and articles, and I believe that the respect she deserves requires taking her entire record seriously. We must, of course, look at each part of her record in its proper context for what it properly can provide. But it is particularly appropriate to consider Judge Sotomayor's entire record because, on the Supreme Court, she will help determine the very precedents that today bind her as an appeals court judge. Because she will not in the future have the same judicial constraints she has had in the past, her views about judicial power and process, expressed in other settings such as articles and speeches, become more rather than less relevant.

Judge Sotomayor has given speeches directly addressing how judges should approach deciding cases. She gave one particular speech more than half a dozen times over nearly a decade while she was a sitting judge. It is, therefore, a particularly useful source of her views on this important subject. In that speech, Judge Sotomayor acknowledged that race and gender affect how judges decide cases generally, and "the facts I choose to see" specifically. She embraced the notion that there is no objectivity or neutrality in judging and that impartiality is merely an aspiration which judges probably cannot achieve, and perhaps should not attempt.

These are troubling statements that appear to conflict with the impartiality that I believe is essential, that most Americans expect, and that the oath of judicial office requires. As a result, Judge Sotomayor and her advocates have tried to blunt this speech's more controversial edges. They have, for example, emphasized its audience or its purpose rather than its content. The claim that she used the speech solely to inspire law students, however, is both false and irrelevant. It is false because she also gave the speech to other audiences, such as the Princeton Women's Network, and published it in a law journal certain to be read by a broader audience. More importantly, the claim is irrelevant because the controversy comes from its content, not from its audience.

In another speech that she gave just a few months ago, Judge Sotomayor discussed the relevance of foreign law to the interpretation and application of American law. The Supreme Court has begun using foreign law to shape its interpretation of constitutional provisions related to the death penalty, privacy, and other issues. In my view, this is simply another means judges use to change the meaning of the Constitution from what the people intended. Changing the Constitution’s meaning is changing the Constitution itself, something judges have no authority to do. Judge Sotomayor was quite candid in this speech, saying that foreign law will be "very important" in thinking about legal issues and that judges may look to what "anyone has said to see if it has persuasive value" in deciding cases.

Once again, Judge Sotomayor’s advocates have attempted to minimize the significance of such controversial views. At the hearing and in answers to post-hearing questions, for example, she appeared to take a narrower position than in her speech, stating that judges may not use foreign law as "binding or controlling precedent" in deciding cases. No one, however, argues otherwise. The issue is not whether a foreign court’s decision can literally or formally bind an American court. It cannot. The issue has always been whether decisions by foreign courts may influence the interpretation, or may be used to shape the meaning, of American statutes or the Constitution. On that question, Judge Sotomayor said in answers to post-hearing questions that decisions of foreign courts can indeed be "a source of ideas informing our understanding of our own constitutional rights."

Analysts such as Byron York and Tony Mauro have observed what I found frustrating, that the position Judge Sotomayor took at the hearing appeared to conflict with the positions she had taken on such issues in her speeches and articles. Even while supporting her confirmation, the Washington Post editorialized that Judge Sotomayor’s attempts to explain away or distance herself from past statements "were unconvincing and at times uncomfortably close to disingenuous, especially when she argued that her reason for raising questions about gender or race was to warn against injecting personal biases into the judicial process. Her repeated and lengthy speeches on the matter do not support that interpretation." This left me with the speeches and articles themselves and the troubling picture they paint of an activist approach to judging.

Turning to her cases, I would note first that the Supreme Court has disagreed with Judge Sotomayor in nine out of ten cases it has reviewed, and affirmed her in the remaining case by the slimmest 5-4 margin. Those reversals include significant criticism of her decisions. In one case, for example, the Court said that Judge Sotomayor had failed to follow its caution "consistently and repeatedly recognized for three decades" in creating a right to sue private corporations for violating the Constitution. Even the dissenters, who voted to affirm Judge Sotomayor’s result, rejected her expansive reasoning.

President Obama has said that only a small number of a judge’s decisions--he claims it is just five percent--are truly hard cases. If he is correct, these best reflect a judge’s own views about how to approach and decide cases, that is, how to exercise judicial power. And the Supreme Court decides only the hardest cases, accepting barely one percent of the cases appealed to it for review and deciding two-thirds of those by split decisions.

The Ricci v. DeStefano case has received significant attention, not simply because it is one of those decisions in which the Supreme Court reversed Judge Sotomayor. In this case, she approved a city’s decision to throw out the results of a fairly designed and administered promotion exam because too few minorities passed it. This case presents troubling questions of both process and substance. Judge Sotomayor initially used a summary order that did not have to be circulated to the full Second Circuit, and then a per curiam opinion that is permissible only when the law is entirely settled and its application is clear. Each was but one paragraph long and neither appears to have been an appropriate vehicle for handling this case.

It is important to point out that this case involved both kinds of racial discrimination covered by Title VII of the 1964 Civil Rights Act, disparate treatment which focuses on motivation and disparate impact which focuses on consequences. The city claimed that its disparate treatment of those who passed the promotion exam was justified by the fear of a disparate impact lawsuit brought by those failed it.

Judge Sotomayor and her advocates assert that this decision was based squarely on settled and longstanding Second Circuit and Supreme Court precedent. Contrary to her statement to me at the hearing, however, the one-paragraph Second Circuit opinion cited no such precedent at all, but only district court opinion in that case. But the district court actually acknowledged that this was a very unusual case in which those who passed a promotion exam challenged the refusal to use the results rather than those who failed challenging the decision to use them. None of the precedents cited by the district court involved this kind of case.

For this obvious reason, six of Judge Sotomayor's Second Circuit colleagues believed that the full circuit should have reviewed her decision, arguing that the case raised "important questions of first impression in our Circuit--and indeed, in the nation." When it reversed Judge Sotomayor, the Supreme Court similarly observed that there were "few, if any, precedents in the courts of appeals discussing the issue."

On its face, Justice Kennedy’s opinion belies Judge Sotomayor's claim at the hearing that the lack of precedent was limited to the new legal standard she said the Court was creating. Not only did the opinion plainly state that there are "few, if any, precedents...discussing the issue," but these words followed the Court’s description of the facts, before it had even begun addressing the appropriate legal standard.

Judge Sotomayor's decisions in cases involving the Second Amendment right to keep and bear arms are also troubling. Last year, in District of Columbia v. Heller, the Supreme Court clearly identified the proper analysis for deciding whether the Second Amendment binds states as well as the federal government. Several months later, in Maloney v. Cuomo, Judge Sotomayor ignored that directive and clung to her previous insistence, following a different analysis the Supreme Court had long ago discarded, that the right to bear arms does is protected only against the federal government. In the process, she also stuck with the notion that the right to bear arms is so insignificant that virtually any conceivable reason for restricting it is permissible.

I asked her about these decisions at the hearing and found that she either could not remember or simply would not acknowledge even the most obvious answers to basic questions. She would not, for example, acknowledge that the Supreme Court's so-called rational basis standard, which she used post-Heller to uphold a weapons restriction, is the most permissive standard under which courts uphold virtually any statute. Her own opinion in Maloney said that under this standard, legislation "merely must find some footing in the realities addressed by the law" to be upheld by the courts. But while Maloney was issued only a few months ago, Judge Sotomayor seemed unable or unwilling to acknowledge in the hearing what she had put in writing.

She likewise gave short shrift to the fundamental right to private property. In Didden v. Village of Port Chester, Judge Sotomayor affirmed dismissal of a property owner’s lawsuit after the village condemned his property and gave it to a developer. The Supreme Court, incorrectly in my view, had previously held that economic development can constitute the "public use" for which the Fifth Amendment allows the taking of private property with just compensation. In Didden, however, the village had only announced a general plan for economic development. This may have made takings of specific property within the development area possible, but no taking had in fact occurred. Mr. Didden sued after the village later condemned his property.

In yet another cursory opinion, Judge Sotomayor denied Mr. Didden even a chance to argue his case. She said that the three-year period for filing suit began not when the village actually took his property, but when the village earlier merely announced its general development plan. In other words, Mr. Didden should have sued over the taking of his property before his property had been taken. But had he done so then, he would certainly have been denied his day in court because his legal rights had not yet been violated. This catch-22 amounts to a case of dismissed if he did, and dismissed if he did not. Along the way, Judge Sotomayor gave inadequate protection to yet another fundamental constitutional right.

Let me emphasize that I like Judge Sotomayor and believe she is a good person. I would like to be able to support her nomination. I believe, however, that a nominee’s approach to judging is more important than her resume, especially on the Supreme Court where Justices operate with the fewest constraints. Each nominee comes to the Senate with her own record, and it is that record that we must examine for clues about her judicial philosophy. Judge Sotomayor's speeches and articles outline a troubling judicial philosophy which her appeals court cases, hearing testimony, and answers to post-hearing written questions do not neutralize.

My colleagues know that I take quite a generous approach to the confirmation process, believing that the Senate owes some deference to the President's qualified nominees. I have rarely voted against a judicial nominee and took very seriously whether to do so now. I read and studied Judge Sotomayor's speeches, articles, and cases. I met with and considered the opinion of legal experts and advocates of various perspectives. I participated in all three question rounds during the confirmation hearing. In the end, however, neither general deference to the President nor a specific desire to support a Hispanic nominee overcame my concerns. There remained too many conflicts between Judge Sotomayor's record and principles about the judiciary in which I deeply believe. I wish President Obama had taken a different course. But that is the decision I have to make in this case.

Thank you, Mr. Chairman.
[End of quote.]

It is quickly evident that empathy is only a part of Hatch's concerns regarding the qualifications of a good judge. Other concerns revolve around knowledge of the Constitution and laws, how to exercise judicial power, and how to decide the most difficult cases. That which is of major importance in the relationship between a psychotherapist and a patient--empathy--would seem of a lesser or different kind of importance in the 'relationship' between a judge and a criminal. It is not, for example, the duty of a judge to increase the self-esteem or promote the self-actualization of a defendant through expressions of empathy, but to uphold the law and to protect society.

Now, since I felt a need to elaborate on a definition of empathy, I browsed the bookshelves of my home library and found just the book to more fully complete this topic: Relationship: The Heart of Helping People. Perlman's definition of empathy emphasizes the therapeutic relationship, the therapist's self-awareness, the patient's self-esteem, and the necessity of objectivity.



Empathy. This means feeling with and into another person, being able to get into his shoes. It may occur spontaneously or may be a carefully learned "listening with the third ear" and responding in tune with the other person. It may require that the person be drawn out, bit by bit, to describe what and how he feels, so that the helper may respond with accuracy. Empathy differs from sympathy. Sympathy surely involves a bond of feeling between helper and helped. Unlike empathy, however, sympathy rises out of an assumption that "you feel as I would under the circumstances," that "I understand your feelings because I assume they are like mine." Empathy, on the other hand, says in effect, "I want to b attuned to how you feel--I put my antennae out to take in (from what you say, from how you act, from your responses to my understanding-seeking comments or queries) how it seems and feels to you, what it means to you." "Let me get into your shoes so I can more fully understand."

A caveat here: there is probably no more annoying or even threatening person than one who "understands" too quickly and too deeply, before you have had a chance to get the words out of your mouth, who reassures too swiftly because of his sometimes erroneous assumption that you and he are on the wavelength. Such a person may often make a quite different interpretation of what you said from what you meant. Such a person may be quite sympathetic, bent on making you feel better fast. But he is not empathic. This involves giving oneself over to getting the meaning behind the words or, for the person who has trouble expressing himself, making some tentative comments or queries--"Do you mean...?" "Is what you're saying...?"

Empathy, in short, is leading oneself to another to feel into and take in the moment's essence of the other. Aside from it value in increasing the helper's understanding of the person, there is nothing more gratifying to anyone's self-esteem than for another person to pay close attention to him, to consider him important or interesting enough to want to understand his special feelings and meanings. It is a common experience for all of us that when we speak of being "understood" and of another person's being "understanding" we do not mean that he grasps our words. Rather, it is that he is sensitive to what is under those words or actions; he senses and relates to their accompanying feelings.

Some of us are "just naturally" empathic. Whether this is inborn or inbred is a matter for argument. Happily, however, some recent experiments in "empathy training" of human service personnel indicate that it is possible to learn empathic skills and thence to increase awareness and sensitivity to the feelings of others.

A persistent problem is involved in empathy. How does one retain objectivity? How get back into one's own shoes? This is absolutely essential if you are to be of help to a person who of course experiences his problem subjectively, who feels tumbled about in his thoughts and feelings, and whose involvement may even cloud and distort the reality.

Objectivity is an act of conscious discipline and self-management. Fortunately, its consistent practice entrenches it so that getting back into one's own shoes as the responsible helper can become habitual. But beginners need to learn to do it. First they need to learn that "objectivity" does not at all mean an attitude of cool detachment or complete neutrality. Neutrality means "I don't really care--either way, any way is acceptable to me." It is inimical to a helping relationship. There is, then, a dilemma here--the need to be warmly empathic, responsive to subjective reactions of the client/patient, and yet the need to be able to move back into one's role as professional helper, expert (one hopes) in assessing the the person and his problem and the kind of help he needs. The sensitively attuned helper finds himself in continuous movement between momentary merging with his client/patient and regaining his objective stance as a professionally responsible assessor and actor in the client's behalf.

"Objectivity" is the recognition and then the management or control of one's subjectivity.

Whether in working with people or things, the first and most essential step toward objectivity is self-awareness, awareness of your own emotional and reactive responses to persons and situations. Past the awareness that "I, too, have feelings"--sometimes appropriate and sometimes not--the need is for self-management. The helper disciplines himself by the question, "Is the verbal or action expression of my feeling likely to be helpful to my client/patient?" If the answer is uncertain, and surely if it is no, such feeling must be shelved while the helper reminds himself of his purpose and of how he can best further it. Shelved, but not forgotten--as will be discussed further on. With practice this staying of impulse becomes almost second nature. But it requires continual vigilance. Even the most experienced of us are now and then shaken by emotions aroused by this client or that situation. Such emotional involvements may be "natural" and explainable, but they are rarely useful.
[End of quote.]

According to Perlman, psychotherapeutic empathy does not overrule objectivity. Remember, Senator Jeff Sessions (see Part II) emphasized the need for objectivity in the judicial system: "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." Social workers and psychotherapists are also expected to exercise objectivity. Empathy cannot flow out by itself, singularly or magically, but must be balanced by the worker's other intellectual and personal attributes such as objectivity, vigilance, and self-awareness.

Perlman goes on to talk about other social work skills such as warmth and genuineness, and these skills were also emphasized by Carl Rogers. Warmth, in Rogerian terms, meant unconditional positive regard. Rogers said that social workers must encourage patients to express feelings and to arrive at their own conclusions. To show warmth means not to blame or judge the patient, but to regard him as a person of worth. (There are limitations to positive regard: destructive or self-destructive behaviors may require intervention, and criminal behavior should not be condoned.) Social workers must also be genuine or authentic. Perlman states that to be genuine means "to be free of pretension." Social workers, to some extent and in appropriate context, can express their own feelings to the patient as well as admit when they do not know something.

Before closing today's essay, let's review Carl Rogers' guideline for effective social workers. As an exercise in critical thinking, ask yourself if someone who engages in identity politics could view others according to Rogers' criteria.



  1. Can I be perceived by the other person as trustworthy, as dependable or consistent in some deep sense?

  2. Can I be expressive enough as a person that what I am will be communicated unambiguously?

  3. Can I let myself experience positive attitudes toward this other person--attitudes of warmth, caring, liking, interest, respect?

  4. Can I be strong enough as a person to be separate from the other?

  5. Am I secure enough within myself to permit him [or her] separateness?

  6. Can I let myself enter fully into the world of [the other's} feelings and personal meanings and see these as he [or she] does?

  7. Can I accept each facet of this other person which is presented to me? Can I receive the [the other] as he [or she] is?

  8. Can I act with sufficient sensitivity in the relationship that my behavior will not be perceived as a threat?

  9. Can I free [the other] from the threat of external evaluation?

  10. Can I meet this other individual as a person who is in process of becoming, or will I be bound by [the other's] past and by my past?
    [End of quote.]

The contrast between Hatch's and Perlman's (and Rogers') perspectives would seem to underscore that psychotherapeutic empathy is not appropriate for, or even possible in, the courtroom. A judge's application of empathy would have to follow a course such as that suggested in Part I and Part II of this essay, or perhaps be omitted entirely. Certainly, judges, like social workers and psychotherapists, would benefit from explanatory and instructive guidelines as well as case study examples. (Written 08/17/09: bibliography available.)

Until we meet again..............stay sane.

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Copyright 2009 Natalia J. Garland