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Wednesday, June 30, 2010

It's the empathy, stupid

Empathy was back yesterday, with Republican Senators again trying to push the nominee to adopt or disavow President Obama's stated vision of judging. This time it was Senator Kyl and the following exchange:

Kyl: In the time of sentencing, a trial court might be able to invoke some empathy, but I can't think of any other situation where, at least off the top of my head, it would be appropriate. Can you?

Kagan: Senator Kyl, I don't know what was in the -- I don't want to speak for the president. I don't know what the president was speaking about specifically. I do think that in approaching any case, a judge is required, really -- not only permitted, but required -- to think very hard about what each party is saying, to try to see that case from each party's eyes, in some sense to think about the case in the best light for each party and then to weigh those against each other. . . . But at the end of the day what the judge does is to apply the law. And as I said, it might be hard sometimes to figure out what the law requires in any given case, but it's law all the way down.

I mentioned earlier that I liked the answer for how it brought the adversary system and the role of attorneys and parties into the judging mix. But what I really liked about the answer is that Kagan just defended the President's point on empathy, although no one caught it.

Remember that empathy is not synonymous with sympathy (Kyl's question either ignored or missed the difference; what happens at sentencing would be sympathy). Empathy literally means the capability of experiencing someone else's emotions and feelings; colloquially, it means being able to put yourself in the other person's shoes and to understand where she is coming from. An empathetic judge truly listens to the parties and tries to put herself in the party's shoes in hearing and trying to understand those arguments. Well, isn't that precisely what Kagan meant by "see[ing] that case from each party's eyes"?

An empathetic judge does not decide a case out of sympathy for one party or because she feels bad or sorry for that party. And no one suggests any judge does so; it is not the call for lawlessness that so many Republicans and conservatives claim. Empathy is only a way of listening to the parties and trying to understand their arguments. This might affect the outcome, of course. But that is because the parties' arguments always might affect the outcome. The point of empathy is that the judge should really listen and try to understand and not have already made up her mind.

When I heard this exchange live, it actually sounded as if Kagan was linking this silent empathy to "law." That is, the judge must listen to the parties as part of the process of figuring out what the law is and what the law requires. That listening to the parties (which inherently involves empathy) is part of "law all the way down." That connection does not come through in the transcript quite as well.

But maybe we are getting closer.

Posted by Howard Wasserman on June 30, 2010 at 10:55 AM in Current Affairs, Howard Wasserman, Law and Politics | Permalink

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I liked that bit, too. In addition to subtly saying that empathy has a role in understanding and deciding a case, she let us in -- just a little -- on how she might interpret something, e.g., the Constitution. She said, "And as I said, it might be hard sometimes to figure out what the law requires in any given case, but it's law all the way down." (Emphasis added.) With this, I understand her to be saying that, when the law is not clear and yet the Court is required to make a decision, empathy is one of those factors that should properly be considered in narrowing down the range of possible outcomes. I haven't heard much in the hearings about what kind of interpretive theory Kagan would apply, but this suggests something other than the "calling balls and strikes" approach.

Posted by: Adam Richardson | Jun 30, 2010 11:57:36 AM

You're really re-writing Obama's infamous "empathy" speech. He did not call for "empathy" in terms of even-handed care to (in Kagan's words today) "think very hard about what each party is saying, to try to see that case from each party's eyes, in some sense to think about the case in the best light for each party and then to weigh those against each other."

Instead, Obama's "empathy" remarks were directly and expressly made in contrast to Roberts's "umpire" analogy. In other words, Obama meant empathy as a challenge to the notion that judges should treat parties equally despite their disparate social and economic standing. Obama called for judges to give socially and economically disfavored parties a little extra help.

So ironically enough, the Kagan lines you quote are -- far from embracing Obama's "empathy" standard" -- actually embrace of Roberts's umpire analogy (as Roberts actually crafted it, not as others have distorted it): as Kagan put it, "at the end of the day what the judge does is to apply the law."

Posted by: Adam | Jun 30, 2010 3:21:17 PM

"And as I said, it might be hard sometimes to figure out what the law requires in any given case, but it's law all the way down."

It's also hard to discern whether a 92 mile-per-hour slider that slices in and out of the strike zone was a strike or a ball. But that's not to say that the umpire's job is to give the benefit of the doubt to the down-on-his-luck pitcher before calling it a ball or a strike.

Posted by: Adam | Jun 30, 2010 3:23:11 PM

Adam: Respectfully, you are mischaracterizing President Obama's empathy remarks. In those remarks, Obama did not "call[] for judges to give socially and economically disfavored parties a little extra help." Rather, he said, to appropriate your words, "that judges should treat parties equally despite their disparate social and economic standing."

Obama articulated two ways of interpreting the Constitution and the role of the Supreme Court: (1) "a cramped and narrow way in which the Constitution and the courts essentially become the rubber stamps of the powerful in society;" and (2) "the courts are the refuge of the powerless, because oftentimes they may lose in the democratic back-and-forth." That latter way recognizes that the powerless "may be locked out and prevented from fully participating in the democratic process." (Source here.) Discussing the set of cases that are difficult to resolve, Obama later asked the rhetorical question, "What's their broader vision of what America should be?"

It was then that Obama brought up Chief Justice Roberts: "You know, Justice Roberts said he saw himself just as an umpire. But the issues that come before the court are not sport. They're life and death. And we need somebody who's got the heart to recogni -- the empathy to recognize what it's like to be a young, teenaged mom; the empathy to understand what it's like to be poor or African-American or gay or disabled or old. And that's the criteria by which I'm going to be selecting my judges."

By using empathy, Obama suggested that his ideal Supreme Court justice would adhere to the second vision and correct the distortion that money and power have in the democratic process by placing them in equal standing in the judicial process. Further, he favors a justice who would not look at cases as some septic law school exam fact pattern, but recognize that real people are involved. How is that not a call for justices to treat people "equally despite their disparate social and economic standing"? This was not the challenge you seem to think it is. Additionally, it's consistent with what Kagan has said in her confirmation hearings.

Posted by: Adam Richardson | Jun 30, 2010 4:27:21 PM

Also, Adam, Kagan has noted the misleading nature of the "calling balls and strikes" metaphor, so it is not fair to say that she "actually embrace[s] . . . Roberts's umpire analogy."

Posted by: Adam Richardson | Jun 30, 2010 5:36:17 PM

Adam R: Let me take your second comment first. You're misquoting me. I didn't say that Kagan "actually embrace[s] ... Roberts's umpire analogy." All I said was that specific lines that Howard quoted (and that I quoted once more) -- "at the end of the day what the judge does is to apply the law" -- actually embrace the Roberts "umpire" analogy.

In fact, you should have noticed that when you modified the verb, adding an "s" in brackets, to reorient my own words.

Now your first point. I stand by my point; I think you're wrong. Let's look at what Obama actually said: http://firstread.msnbc.msn.com/_news/2009/05/01/4430634-context-of-obamas-empathy-remark. After going on at length about how a certain, unnamed "cramped and narrow way" to read the Constitution -- an obvious reference to Textualism -- becomes one "in which the Constitution and the courts essentially become the rubber stamps of the powerful in society," and contrasting it with his vision of the courts, as "the refuge of the powerless, because oftentimes they may lose in the democratic back-and-forth," Obama turns specifically to Roberts and the umpire analogy.

Obama rejects Roberts's umpire analogy -- that is, the umpires are neutral observers who apply preexisting rules -- on the basis that contentious legal issues are not "sport," and then he says he wants judges with "he empathy to recognize what it's like to be a young, teenaged mom; the empathy to understand what it's like to be poor or African-American or gay or disabled or old."

In short, Obama wanted judges who are empathetic to certain subclasses of the population, ones that he thought were underserved by conservative jurisprudence.

The last paragraph of your first comment is utterly baffling. The only way to give parties "equal standing in the judicial process" is to apply the law neutrally and evenhandedly regardless of the parties' relative social standing -- i.e., to call the balls and strikes as fairly as possible. Certainly not to take extra care to be extra concerned with one of the parties, just because he or she is "a young, teenaged mom," "poor or African-American or gay or disabled or old."

Posted by: Adam | Jun 30, 2010 9:26:03 PM

By the way, Adam R.: I would be quite interested in hearing your standard by which a judge should decide who deserves particular empathy, and how the use of empathy should affect the judge's analysis of legal questions in a given case.

Posted by: Adam | Jun 30, 2010 9:29:41 PM

Adam: I'll rephrase my second comment to respond to your unnecessarily semantic shot at it: "Also, Adam, Kagan has noted the misleading nature of the 'calling balls and strikes' metaphor, so it is not fair to say that the lines quoted by Prof. Wasserman and re-quoted by you 'actually embrace Roberts's umpire analogy' -- unless you like to consider things sans context."

I'll respond to the rest of your comment(s) after I've had coffee tomorrow morning. Although, I will note that I did look at Obama's remarks -- you apparently had not.

Posted by: Adam Richardson | Jun 30, 2010 11:51:28 PM

Adam R: Trust me, I'm quite familiar with Obama's empathy remarks.

My comment wasn't "semantic." Rather, it was simply an observation that you took my comment to say something that it didn't. And that is quite ironic: You chastise me for not reading Obama's remarks (you're wrong), yet you misread (and mischaracterize) mine.

Posted by: Adam | Jul 1, 2010 10:49:49 AM

Franken's citation of Carolene Products FN4 (FN 3 is interesting given the concern for regulation of vegetables) is relevant here. Also, Madison's citation of how the BOR protects minority rights.

Why the reference to them? Why not just say they protect rights? Is there some implication that perhaps some will be in a weaker position in the majority rules system of republican government, one where certain interests are in a more powerful position and are less in need of independent tribunals of justice to equalize the playing field?

As Kagan noted, sometimes the government is given a harder time and this is okay, since the government is not in an equal position as some poor defendant. The same would apply to some poor person or a worker going against a corporation. There seems to be some signs of Lochneresque philosophy here -- the worker and business are in equal contract position and not treating them exactly the same is illegitimate.

[BTW, reading over one of the links provided by a reply, I found a comment a bit ironic -- Sessions noted she wasn't that forthcoming on her views. This is somewhat fair and I'm annoyed she changed her position from her earlier book review on confirmations. But, it is largely unfair in that both sides didn't really ASK. She has various writings she wrote independently; they were more concerned about some comments made as a law clerk or political appointee. Many found her presidential administration article excellent. I don't think it was even referenced. A few substantive comments warranted follow-ups that did not come. I found all of this depressing.]

Posted by: Joe | Jul 1, 2010 11:38:47 AM

Adam: It was semantic, because the point I made remained the same whether using the old or the new wording. It is ironic you are so sensitive to how others characterize what you say given your penchant for eschewing a fair reading of other's remarks.

Now, about fair reading. I engaged the president's remarks, put them in context, and tried to figure out what he meant -- I gave them a fair reading. Rather than attempt the same, you read into the remarks a bias that colors your reading (Obama meant a touchy-feely empathy).

In your reading, you make two mistakes. First, you confuse empathy with sympathy, which is exactly the mistake Prof. Wasserman highlighted in his original post. Second, you still misunderstand what Obama meant; and now you seem to misunderstand what I wrote. Let's try to figure out what Obama said and meant, rather than what you want him to have said and meant.

Obama talked about how the democratic (i.e., political) process does not permit full participation by certain classes of the population. This leads to a distortion of influence -- an unequal social standing. Failure to recognize this leads to, as Obama said, the courts becoming "the rubber stamps of the powerful in society." This is because, I would guess, that standing is carried into the judicial process, giving "the powerful" an unfair advantage in litigation challenging the resulting and possibly unfair legal order.

Recognizing relative social standing in order to place parties on equal standing in litigation leads to applying "the law neutrally and evenhandedly regardless of the parties' relative social standing." You confuse that with taking "extra care to be extra concerned with one of the parties." In such a case, the court would go beyond removing the advantage of the powerful party, and treating the parties equally, to giving the less powerful party an advantage, leading to unequal treatment. Listening to and understanding each voice in a case and tilting the balance toward one of the parties are simply not the same things, your confusion notwithstanding.

Finally, I will not respond to your invitation to articulate a "standard by which a judge should decide who deserves particular empathy, and how the use of empathy should affect the judge's analysis of legal questions in a given case." Given your misunderstanding of empathy, and your attempt to pin that misunderstanding onto what I've said, I see no use it. It would take too long to unpack the faulty assumptions on which your question rests.

I'm sorry you have a hard time with this. I'd like to discuss it further, but I will refrain from doing so because of your inability to fairly read what we are discussing and what I say.

Posted by: Adam Richardson | Jul 1, 2010 12:15:15 PM

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