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Wednesday, May 08, 2019

A Few More Details on Kavanaugh and "Empathy"

I was spurred by Howard's post below, and the interesting comments on that post, to go through transcripts of the Kavanaugh confirmation hearings. It's hard to search for synonyms for (some form of) "empathy," such as, in Boolean-speak, "listen /s others." But I did search for "empath!," "civility," "discourse," and even "listen /s others." On a whim, I searched for "shoes"--which was actually a fairly productive search!

The search results are decidedly imperfect. I encourage others to do a better job. (I certainly did not watch or listen to the hearings in real time, and others might draw on their recollections, and then follow up to correct the inevitable errors in their memories.) But here's what I found:

1) "Empathy" comes up several times in the confirmation hearings. At least two friends of Kavanaugh's who testified spoke about Kavanaugh as empathetic, and one told the committee she believed Kavanaugh "has exposed himself to a wide range of people" from "a variety of backgrounds," and that he would "listen empathetically and hear their voices."

2) The number of senators I found discussing empathy is extremely small and exclusively Republican. The most prominent discussion comes from Senator Sasse. He criticizes popular invocations of "empathy" as a desired judicial quality, arguing that Congress "constantly abdicates its responsibility" to listen to, represent, and correct the concerns of citizens, and that calls for judicial empathy often amount to a call for the judiciary to do what Congress so often fails to do. He argues that the role of a judge is not "to exercise empathy" but "to follow written laws."

3) A search for "shoes" actually yields several interesting results. Kavanaugh talks at the hearings about the importance of "standing in the shoes of others," and understanding that we could each be homeless or disadvantaged. Kavanaugh also mentions his mother's judicial career as a major influence, and says, "She taught me that good judges must always stand in the shoes of others." One of the supporters I mentioned earlier discusses receiving advice from Kavanaugh during law school about the importance of standing in the shoes of others and "understand[ing] the issue from all points of view."

4) This search also yields a colloquy, again with a Republican senator. This time it is Senator Graham. He asks Kavanaugh, who has spoken about standing in the shoes of others, "Is it fair to say that your job as a judge is to not so much stand in the shoes of somebody you're sympathetic to but [to] stand in the shoes of the law?" Kavanaugh replies, "You're in the shoes of the law but with awareness of the impacts of your decisions....That's the critical distinction. You can't be unaware. When you write an opinion, how's it going to affect people?" He then emphasizes the importance of explaining oneself in a judicial opinion in a way that is not too full of oneself as a judge but rather makes an effort to show the litigant that one understands his or her situation.

5) A search for words like "civility" and "discourse" yields a lot of irrelevant results and a few relevant ones. The most relevant example is this statement from Kavanaugh: "I think civility and collegiality help make a good judge. A good judge understands that real people are affected in the real world."

Again emphasizing the imperfection of the search strategy and my willingness to be corrected by better research, I would make the following observations, which I offer neither in support of nor in criticism of Howard's post or of either Kavanaugh or his (stated or revealed) approach to judicial decision-making, but to offer additional details to Howard's post and perhaps lend further perspective:

1) Kavanaugh's discussion of something like "empathy" at the circuit conference was not new. He made the point about the importance of standing in the shoes of others several times during the (widely publicized and televised) confirmation hearings, and emphasized--as others discussing judicial empathy have before--the importance not only of listening to and attempting to understand others, but of attempting to explain one's decision to the parties, and perhaps especially the individual and/or disadvantaged litigant, in a way that may go for or against the legal claim involved but shows that one understands the litigant's perspective.

2) There was very little discussion of empathy on the part of Republican senators. This might support Howard's question whether some Republican senators (insofar as they are part of the incredibly broad and non-specific group Howard is implicitly discussing: people who opposed Obama's use of the word "empathy" and/or those who think of Kavanaugh as "the darling of the Republican judiciary") don't care all that much about the use of a word like "empathy" as such. On the other hand, Kavanaugh himself speaks in terms of standing in the shoes of others, not in terms of empathy. And at least one Republican Senator (Sasse) directly and critically addressed the idea of judicial empathy, while another (Graham) asked about it and put forward a critical distinction between standing in the shoes of others as a judge and "standing in the shoes of the law," to which Kavanaugh's response signaled partial disagreement or at least clarification: namely, that a judge. ought to stand "in the shoes of the law" but with awareness of the impact of one's decision on people in the real world.

3) I could find no Democratic senators addressing any of these points in the hearing transcripts. That doesn't mean no one did; it just means I couldn't find any evidence that they did in my rather limited searches. I found no Democratic senators referring to and praising Kavanaugh's discussion of standing in the shoes of others, none criticizing it, and none engaging in a colloquy with him about it, perhaps to clarify what he meant by it and how it would work in his judicial decision-making. This might support a similar proposition to the one Howard speculated about. It might suggest that support for "Obama's use of the term" was fair-weather support, not a matter of deep interest or "grounded in principle." Or it might not. Democratic senators on the Judiciary Committee are a tiny subset of the indistinct and undefined group of people who supported Obama's use of the word empathy, and should not lightly be assumed to be representative of that wider mass of people. They are also political actors, who might agree with or approve of what Kavanaugh said on the subject at the hearings but not say so publicly, for political reasons. If that is seemingly not a response that is "grounded in principle," neither does it prove that they have no principled interest in judicial empathy. (But that would suggest, by the same token, that there might be Republican senators on the committee who disagreed with Kavanaugh's perspective, and have what is indeed a principled opposition to that view, but said nothing, again for political reasons.).

I don't know whether this changes Howard's view. Since he spoke speculatively, if perhaps suggestively, I won't assume he has a strong or settled view on these questions. I am disinclined to lump large masses of people together, and thus disinclined to assume based on limited evidence that all Republicans or all Democrats (a grouping in which, in truth, I have very little interest) share the same view, that all people who have spoken about judicial. empathy have the same view, or that speech or silence from any one individual within this vast group indicates much if anything about the views of others within that vast group. Such an approach seems to me to lack empathy, among other problems. So I would probably worry about the last two paragraphs of Howard's post with or without this additional research.

But I would hope the research does add a little extra depth to Howard's discussion and speculation. Perhaps it will move him to second-guess or deepen his speculation. Perhaps it will also convince him that the question about the presence or absence of principled views on judicial empathy extends beyond opponents of that word or concept, and includes its supporters, who also should be subjected to critical inquiry. 

In my view, a tentative set of propositions that combines a certain amount of both charity and realism would be that there are indeed those who, on principled grounds, are supportive of or opposed to the idea or label of judicial "empathy"; that there are nuanced differences among them about what empathy entails and what role it plays in judging; that in the heat of the moment, many of those people--particularly but not exclusively elected officials--will not speak about empathy at all, favorably or critically, if it is politically inconvenient to do so, which may suggest not a lack of principle (although that's a possibility) but a lack of fortitude or integrity; and that a very small but not non-existent number of people will do so.

As I said, the research was tentative and incomplete, and so are these propositions, although they seem reasonable enough. And I emphasize again, given the difficulty of having disinterested and academic discussions in a rather politicized era, including doing so among legal academics, some of whom may inadvertently overestimate the importance of their public pronouncements about these issues and/or succumb to a tendency to reduce a discussion to the politically relevant but intellectually shallow question whether one is "for" or "against" someone or something, that none of this should be taken as indicating either praise for or criticism of Kavanaugh, or as assuming that what a judicial nominee--or a senator!--says or doesn't say on a public occasion is strong evidence of what that person believes, cares about, or will actually do in practice. 

Posted by Paul Horwitz on May 8, 2019 at 09:34 AM in Paul Horwitz | Permalink


I think we can combine a lot of the comments as follows: There is a pretty clear line of distinction between "liberal" politicians and legal scholars, who believe that it is a legitimate role for a judge to promote liberal ideals and policies in their rulings, and "conservative" legal scholars and politicians, who, at least in the abstract, believe that judges should not let personal ideology influence their rulings. Second, as commenters here have pointed out, "empathy" can mean different things as to the practical result of having it.

Therefore, when conservatives hear liberals extol using empathy in judging, they assume that, in line with the (perceived) dominant liberal view that judges should be more outcome driven, liberals mean that judges should use empathy to influence the ruling. While when a conservative judge extols empathy in judging, conservatives either assume he doesn't mean that empathy should determine the outcome ("How could he, he's a conservative judge," goes the thinking), they just don't hear it due to cognitive dissonance, or, as the Republican senators did in the hearing, they contest it.

So there probably is a difference in conservatives' reactions to liberals or conservatives talking about empathy in judging, but not necessarily a dishonest, or even an unreasonable, one.

Posted by: Biff | May 8, 2019 11:50:06 AM

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