Thursday, March 19, 2009

Wanted: Lawyer for Judicial Position. Must be learned in the law. Must look great in black. Must possess the quality of empathy.

The title of this post could be a "help wanted ad" for the Obama administration as it seeks judicial nominees.  This story created a flap during the campaign, but has resurfaced with the administration's first judicial appointment and the administration's reiteration of this position in a press conference yesterday.  As a refresher for those who've forgotten the phrase, here is the statement that seemed to start it all:

We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage 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.

Statements such as this were criticized roundly by some on the right, such are this Wall Street Journal article which argued:

Every new federal judge has been required by federal law to take an oath of office in which he swears that he will "administer justice without respect to persons, and do equal right to the poor and to the rich." Mr. Obama's emphasis on empathy in essence requires the appointment of judges committed in advance to violating this oath. To the traditional view of justice as a blindfolded person weighing legal claims fairly on a scale, he wants to tear the blindfold off, so the judge can rule for the party he empathizes with most.

To responses such as this I say, "enough already."  The response to this view is disingenuous to say the least for at least three reasons. 

First, the belief that one cannot simultaneously uphold the law and be empathetic is a false dichotomy of the highest order.   If the Senator - now President - had said, "You know, I don't think that judges should have to follow the rules in certain cases - they should do what their hearts dictate," that would be another case altogether.  However, he did not.  He simply said that any judge that he appoints will need to be an empathetic individual.  Nothing prevents a judge from saying, "You know, the merits of your legal case are not that strong, but I understand your situation."   A lot of concurring opinions are written for this very reason.  The additional analysis is simply to say to the litigant, "The law made me rule this way, but that doesn't mean I don't understand the pain this law causes."  The point is that even if a judge feels that the law is wrong, they are not going to defy the law outright to assauge their personal beliefs.  To suggest otherwise is an outright insult to the judiciary.

Second, the criticism is likely leveled because some think that empathy is a code word for that most horrible of all legal evils, "judicial activism."  My response - similar to that of the former Vice President - is "so?"  Sometimes, the law needs a little prodding.  In my research, I have observed - and this is by no means earth-shattering - that the legal literature is always slightly behind the technical, social, and legal advances.  This is not a bad thing.  Our discipline by its very nature is the status quo, and should not be changed on a whim just because it's Wednesday.  However, this view neglects the reality that sometimes the tortoise that is our legal systems needs a little prodding to catch up to society's hare, or vice versa.  Sometimes, judges are the best agent to do that.  No, they are not (usually) elected, but sometimes the legislature lacks the intestinal fortitude to do what is just because the fear of backlash is too great.  I think this is the very system the Founders envisioned.  And even if they did not, it is wonderful to live in a society where the courts and the legislature have a role to play.

Finally, I think the real issue here is the fear that "empathy" is a code word not for activism, but for a concern that people with "empathy" will be more willing to look at the law in a different manner - one that departs from rigid formulaic application of the four corners of the text.  Of the three, this view is actually close to valid.  As we all know, the law is not rigid, but flexible and moving.  There are a number of ways to interpret almost any provision of the Constituion.  But rather than fear those who prefer to see shades of gray where others tend to see black and white, we as lawyers should embrace this and celebrate this as we encourage our students to in our courses.  Yes, textualism and originalism are fine and have their place at the table, but there should be more to the judicial (and legal) thought process than merely reciting rules in a robotic fashion.  As Justice Holmes said, "The life of the law has not been logic, it has been experiece."   No human being can experience all there is to experience in life - nor would we want to.  But empathy allows a person to appreciate and respect the experiences of others and bring that much-needed quality to the table. 

I'm thinking Justice Holmes would side with the President on this one.


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