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Thursday, May 09, 2019

More on Kavanaugh and empathy

Thanks to Paul for parsing Kavanaugh's Senate testimony. I stand corrected as to Kavanaugh--his comments on Monday were consistent with his testimony, suggesting a sincere belief that judges should think about and understand all sides of an issue and the effects of judicial decisions. My mistake in lumping Kavanaugh in with the standard reaction to the idea of empathy among Republicans in Congress and many conservative commentators.

Working off what Paul provides, let me add the following:

• "Empathy" as a concept in judging is non-ideological. One can listen to all sides and consider the effects of decisions and reach a range of results across an ideological spectrum. It does not reflect or demand a commitment to any party or position. It is surprising that the concept continues to generate so much opposition.

• The questions from Sasse and Graham show a continued inability (or refusal) to recognize the distinction between empathy and sympathy (Graham even uses the wrong word).

• I am not surprised that no Democrats addressed this in either direction, because they have run from empathy from the minute Obama mentioned the concept and the public discussion immediately misunderstood the word and what he meant.

Posted by Howard Wasserman on May 9, 2019 at 01:13 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink


Agreed. Kavanaugh and Obama are talking about different things. If anybody has confused empathy and sympathy, it's Obama.

Posted by: Mike | May 10, 2019 4:10:35 PM

1. You say "'Empathy' as a concept in judging is non-ideological." Do you have a source for this statement, or is this your conclusion? If you had said "Empathy' as a concept in judging should be non-ideological," I would agree. However, as I pointed out previously, there are several definitions to empathy, and we can't be sure all judges have the same one.

2. I agree that Kavanaugh's concept of judging fits your definition, and his concept is cognitive empathy.

3. Obama's concept of judging does not fit your definition, and it is not cognitive empathy. Here is what he said at the Robert's confirmation:

"The problem I face -- a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts -- is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases -- what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.

In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled -- in those difficult cases, the critical ingredient is supplied by what is in the judge's heart."

So, for Obama, "in those difficult cases, the critical ingridient is supplied by what is in the judge's heart."

Judging through heart is not cognitive empathy, and it doesn't fit your definition. As I said in my prior comment, Justice Sotomayor recognized this distinction:"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)

The Republicans have recognized this distinction. For example, Senator Grassley stated,"This isn’t the first time the President has talked about how he believes justices should decide cases. He has repeatedly said they should decide cases based on something other than the Constitution and the law.

His views on this subject are clear.

When Chief Justice Roberts was confirmed, then Senator Obama said that in the really hard cases, “the critical ingredient is supplied by what is in the judge’s heart.”

In 2009, President Obama said he views “empathy” as an essential ingredient for justices to possess in order to reach just outcomes.

And before he made his most recent Supreme Court nomination, the President said that where “the law is not clear,” his nominee’s decisions “will be shaped by his or her own perspective, ethics, and judgment.”

But what’s in a judge’s “heart,” or their personal “perspective [and] ethics” have no place in judicial decision-making."

In sum,

1. There is more than one type of empathy.

2. Justice Kavanaugh's view fits your view (cognitive empathy).

3. President Obama's does not.

4. The Republican senators recognized this distinction.

Note: None of the above is intended to be political. I am just applying the definitions to the facts.

Posted by: Scott Fruehwald | May 9, 2019 1:02:49 PM

Certainly empathy can lead one to any result in a free speech case. And yet most people who genuinely believe in (and value) free speech seem to end up at strict scrutiny---see New York Times v. Sullivan.

So we could say that empathy more-often-than-not leads to strict scrutiny and meaningful individual liberty, rather than censorship, disarmament, surveillance, and presumption of guilt until proven innocent.

Posted by: Eggnostic Jones | May 9, 2019 7:47:12 AM

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