Empathy and the Judicial System,
Natalia J. Garland
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.
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.
SENATOR ORRIN G. HATCH'S STATEMENT
ON HIS VOTE OF 'NO'
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
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.
HELEN HARRIS PERLMAN'S
DEFINITION OF EMPATHY
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
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
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
"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
[End of quote.]
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.
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.
CARL ROGERS' TEN QUESTIONS FOR PRACTITIONERS
- Can I be perceived by the other person as trustworthy, as
dependable or consistent in some deep sense?
- Can I be expressive enough as a person that what I am will be
- Can I let myself experience positive attitudes toward this
other person--attitudes of warmth, caring, liking, interest,
- Can I be strong enough as a person to be separate from the
- Am I secure enough within myself to permit him [or her]
- 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?
- 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?
- Can I act with sufficient sensitivity in the relationship that
my behavior will not be perceived as a threat?
- Can I free [the other] from the threat of external evaluation?
- 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.]
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