« JOTWELL: Mulligan on Spencer on personal jurisdiction in federal court | Main | Call for Papers: Second Annual Chicagoland Junior Scholars Conference »

Tuesday, May 07, 2019

It is the empathy, stupid

Yesterday, I attended the 7th Circuit Bar Association Conference and the Judicial Conference of the 7th Circuit (a combined event that appears unique). I moderated a discussion on jurisdictionality (with Scott Dodson of Hastings and Jessica Berch of Arizona State) and watched an excellent panel on judicial independence and the rule of law. I also attended the dinner, which was keynoted by a conversation among Justice Kennedy, Justice Kavanaugh, 7th Circuit Chief Judge Diane Wood, and Northern District of Illinois Judge Gary Feinerman (who clerked for Kennedy the same term as Kavanaugh).

At one point in the discussion, Kavanaugh discussed the importance for judges to listen and to put themselves in someone else's shoes. They must hear and understand the positions of parties, attorneys, or fellow judges, in order to understand where they are coming from and the position they are urging. This is part of essential-but-vanishing "civility" in public discourse.

Wait, though. There is an English word for adopting another's perspective so you can understand their position (although Kavanaugh did not use it)--empathy. When President Obama suggested that empathy was an essential quality for judges, he was lambasted as urging lawlessness and the remark used as a basis for opposing his judicial nominees. Yet here was the darling of the Republican judiciary insisting that this is a necessary quality for him, as a judge, and for public debate more broadly.

Makes you wonder if the opposition to Obama's use of the term was not grounded in principle.

Posted by Howard Wasserman on May 7, 2019 at 02:59 PM in Howard Wasserman, Judicial Process | Permalink



"Judge Sonia Sotomayor told senators Tuesday that she disagreed with President Obama when he said that in a certain percentage of judicial decisions, 'the critical ingredient is supplied by what is in the judge's heart.'" (from NPR website)

From the heart is not cognitive empathy.

Justice Kavanaugh's statement is cognitive empathy. His empathy comes from the mind, not the heart.

Posted by: Scott Fruehwald | May 7, 2019 7:35:37 PM

I'm not sure how the commenter below knows which kind of empathy Kavanaugh was talking about and which kind of empathy Obama was talking about, or why he thinks they were talking about the kinds of empathy he says they were talking about.

Posted by: Asher Steinberg | May 7, 2019 6:41:02 PM

Scott,then accept my apology.....

Posted by: El roam | May 7, 2019 6:25:39 PM

El roam. I was responding to the post, not your comment.

Posted by: Scott Fruehwald | May 7, 2019 6:18:06 PM

Scott's comment is along the lines of my reaction to this. Contrary to the snarky comments at the end of the post, I see a principled distinction between empathy as understanding vs. empathy as sharing feelings. it sounds like Kavanaugh would also draw this distinction.

Also, it looks like the hyperlink in Scott's comment inadvertently included the last parenthesis and the semicolon. The link is active though:


Posted by: TJM | May 7, 2019 5:49:04 PM

Scott Fruehwald,

Thanks for your comment.Yet, has nothing to do here with mine with all due respect. I have written about mobility. Management. Shifting from one perception, to another. Functionality.

So, Kavanaugh, either was referring to it. And the post, did refer to empathy. But empathy, is a static and autonomous perception, while a judge:

Needs mobility. Needs mood management. Needs many times, to oppress, and not to let it take over ( like what empathy, naturally, autonomously is doing ).Why ?? Because he is a judge. He needs impartiality. He needs to shift from one adversary to another. He needs to have it all ( all sides ) and finally, to have nothing ( impartiality, and only self persuasion finally, individual one).That's demands hell of mobility. And strictly:

Emotional intelligence and great mobility, but involving: oppression and management of feelings rather, not autonomous burst which takes you all over.He needs to feel contempt towards our hero (the husband) yet,to oppress it .Why? he is not a typical criminal .He needs to restrain himself. He was naturally angry and crazy and in huge stress in a live one. On the other hand, he couldn't beat no one.So,neither the former can take one judge all over,nor the latter,but: mobility. management.As if,out of his personality and nature, or natural perception like layman,who would rather feel:

Empathy towards the husband,or contempt,and only one of both.In that sense, a judge, is not a "normal" person simply, but as if having multi personalities in every given moment in his work.


Posted by: El roam | May 7, 2019 5:45:01 PM

I think you are confusing two different types of empathy. Here are the three types of empathy (https://www.inc.com/justin-bariso/there-are-actually-3-types-of-empathy-heres-how-they-differ-and-how-you-can-develop-them-all.html):

1. "Cognitive empathy is the ability to understand how a person feels and what they might be thinking. Cognitive empathy makes us better communicators, because it helps us relay information in a way that best reaches the other person."

2. "Emotional empathy (also known as affective empathy) is the ability to share the feelings of another person. Some have described it as 'your pain in my heart.' This type of empathy helps you build emotional connections with others."

3. "Compassionate empathy (also known as empathic concern) goes beyond simply understanding others and sharing their feelings: it actually moves us to take action, to help however we can."

Kavanaugh was talking about cognitive empathy. Obama was talking about two or three.

Posted by: Scott Fruehwald | May 7, 2019 5:07:41 PM

Interesting, but this is not the word ( empathy ). Correct, naturally, in the ordinary meaning or perception, it may look or sound as empathy, but, when dealing with judges, this is not the right terminology. And why ?? Simply because empathy is an autonomous sensation or feelings. Judges would bear it, would feel it, but:

On the contrary, they must oppress it, in order, to categorize or well classify the actors, the scenes they deal with. We shall illustrate it:

Suppose Kavanaugh indeed. He is pretty sensitive to domestic violence or alike. One person, husband, is stepping into his home, finding his wife cheating him. Now, he may beat and punch the living hell out of them both. Kavanaugh, wouldn't feel empathy. He would yet, approach it cautiously. Why ?? this is because, he must consider, that the husband, has no criminal record for example. He is a normal person. Not a typical criminal. It is not his way of life. Caught in a moment of huge anger and sorrow naturally.

So, one person may feel empathy towards the husband, but the judge:

Needs rather, emotional intelligence, in order, to oppress the empathy, and in cool manner:

Classify the right inputs, and integrate everything to one coherent picture and ruling. But for that :

He needs to oppress autonomous perception ( empathy ) and exercise rather what we call:

Emotional intelligence. And briefly:

Functionality / mood management v. autonomy. And not to confuse all this with : Mercy of course.


Posted by: El roam | May 7, 2019 4:13:13 PM

The comments to this entry are closed.