Douglas W. Kmiec
Why a much-maligned value is a crucial qualification for the Supreme Court
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Justice has often been depicted as both female and blindfolded to convey impartiality. The femininity of the judicial symbol is ironic, since as Justice Ruth Bader Ginsburg has pointed out more than once, it's lonely, gender-ly speaking, on the high bench. But what of empathy, the ability to stand in the other person's shoes? President Obama has identified this quality as essential, but does empathy require raising the blindfold to see who is before the Court, and if so, doesn't that in itself subvert impartiality?

Empathy is an attractive idea, but it requires some careful unpacking. Judicial officers do, in fact, take an oath to apply the law "without respect to persons.” No one should win or lose in Court because they are rich or poor or black or white. Yet to be evenhanded is not the same as being uncaringly formalistic or concerned only with systematic consequences. Real litigants stand before the Court. No offense to all the highly talented appellate judges on the president's short list, or even to my fellow academics, but both talent pools give almost exclusive emphasis to the law's doctrinal development-the "footnotes in a casebook” as the president put it, rather than the impact of those developments on individual citizens. A few theoreticians in the mix makes sense, but the Supreme Court is now entirely their domain. Empathy has a wider, more open-minded nature, asking how law interrelates with the larger culture.

But do we know empathy when we see it? Maybe not. Conditioned to receive the standard resume consisting of high grades, a court clerkship, practice with a large corporate law firm, followed by service on an appellate bench, the Judiciary Committee would be baffled by a woman lawyer who took time from practice to raise her children the law graduate who taught secondary school or the volunteer in AmeriCorps or even the sole practitioner whose work is seldom highly paid, except in the satisfaction derived from bearing other people's burdens as "family lawyer.”   

Equally baffling to the committee will be the notion that one can be empathetic toward all sides of a dispute. By this rubric, there would be no Court seat for the prophet Micah whose admonition "to do justice, to love kindness, and to walk humbly with your God” is frequently referenced by speakers wishing to inspire newly minted lawyers.

Obama proposes to make Micah's plea for justice more than graduation fodder. To do this, it is possible that he will mine for legal talent in unusual places, but it is more likely he will attempt to find a nominee with appellate court experience whose skill set also shows the capability of challenging methods of interpretation that otherwise wouldn&amprsquot give empathy the time of day. If Obama succeeds even with this more limited challenge, he will have exploded the notion that swapping out a Souter for a new, most likely younger and intellectually energetic, justice is without effect.

What Will Obama Do?

Based upon his own teaching at the University of Chicago, look for Obama to favor a nominee who is not afraid to challenge either result-oriented liberal judging or the incompleteness of the conservative method that has dominated the Court since Nixon appointed Warren Burger to the bench in 1969. Burger, and especially his successors William Rehnquist and Antonin Scalia, have plied the notion-so-called Originalism-that it's not up to them to do justice, since they are just following the plain, public meaning of the words ratified two hundred plus years ago.

Plain public meaning is a beguiling idea, until one actually looks for it. Conservatives intone that it virtually delivers itself like the morning paper. (Remember those?) But like far too many departed dailies, it is often not to be found.  here was no single public mind in 1787 any more than there is now. Back then, public meaning was no doubt very much like it is today: an admixture of both shared and different conceptions of what a given constitutional phrase was intended to accomplish. Obama's task is to find a jurist who not only comprehends the limits of James Madison's dictionary, but also appreciates how real wrongs can be made right with words that have a meaning in the here and now.

A nomination guided by considerations of empathy is especially appropriate following the service of David Souter. Appointed in lieu of Ken Starr, who lost out when Bush I's conservatives split over an issue so meaningless as to not be worthy of retelling, Souter has been made to suffer in Federalist Society circles ever since as the poster boy for what presidents ought not to do. Souter's opinions do meander so the lasting value of his work is uncertain. David Souter will be missed, however, as his oral questions from the bench frequently helped the Court focus and with New England precision readily identified any weakness in an oral advocate's presentation.

In important ways, the Souter legacy has been an important brake on entrenchment of either liberal or conservative ideology. It is claimed Souter wept over Bush v. Gore-not over the outcome necessarily, but that he believed the Court was wrongly involved. Souter's non-ideological empathy was also in dissent in the Lilly Ledbetter case. Here, the Court resolved a statutory ambiguity against giving remedy to a woman whose pay was shorted wrongly because of her gender, but who didn't sue in a timely way because she was initially unaware of the discrimination. The case was a tossup in terms of precedent and statutory language, but empathy would have given Mrs. Ledbetter the benefit of the doubt. She wasn't, and it took President Obama and a few statutory adjustments to clarify that Congress did not want others facing similarly hidden discrimination to be without remedy. However, Congress cannot be expected to be on guard for every judicial decision that offers a less than robust defense of civil liberty, so empathy has its place.

Where else might empathy surface? Consider last year's Heller decision. In Heller the Court found the Constitution to guarantee not just an individual right to own guns as part of a militia, but also a personal right to tote a weapon far more widely. A highly controverted limit on the right of the people to address gun violence, the Heller decision at least only curtailed the authority of the District of Columbia.  It would be far more dubious to accept this ruling, which effectively erased the first 13 words of the Second Amendment, as also constraining all 50 States. It's hardly empathetic to ignore unprecedented numbers of homicides and this issue will soon return to the Supremes.

There is also same-sex marriage. While to date these jurisprudential nuptial knots have been tied (or not) in the State courts, the subject is inevitably destined to stand before federal altar. If the California Supreme Court, for example, chooses to uphold Proposition 8 in a way that validates the selective oppression of one class of citizens, the empathy animating federal equal protection will be put to the test.

Not Abortion Again

For the past 30 years or so, abortion has dominated confirmation battles. It may have a role again, even though it is highly unlikely an Obama nominee will see abortion differently than Justice Souter. Yet empathy supplies insight here, too. Abortion is exactly what the president says it is: &ampldquoa tragic moral choice.” Conservative law professors helping GOP presidential candidates would insist that this choice be made criminal. After Originalism, this "reverse Roe” mantra has been the conservative litmus test of choice for the Court. Yet even to me, a defender of the idea that personhood begins at conception, the inadequacy of using abortion as a measure of judicial merit is made obvious by its narrowness. From the standpoint of empathy, doesn't it seem unlikely that the states prepared to criminalize abortion upon the overturning of Roe will take the next step of sending predominantly poor women and college co-eds to jail? And if compassion exempts these women from incarceration, what consistent principle then sends the doctors off to prison? With these rather basic questions unanswered, questioning a nominee about Roe will tell us little that is coherent.

Does empathy tell us anything important about abortion? It is not, as some religious conservatives claim, just a covert ratification of the practice. No, in ways far more subtle than the bloody images of dissected babies often thrust in the faces of women confronted with an untimely pregnancy, empathy reveals the limits of the law and the importance of giving a woman without insurance or the resources needed to sustain herself, the assistance necessary to allow her to complete a pregnancy.

President Obama reaffirmed this point at his most recent press conference. Women, he said, do not make this decision casually. Indeed, his own very close relationship with his mother left him with the profound understanding that an expectant mother more honestly and plainly than anyone else understands and anticipates the needs not just of the infant in her womb, but of the child at 3, 12 and 28 years of age.

The Limits of the Law

Empathy yields one additional lesson: law is no substitute for love. Yes, it is wrong when the Court usurps legislative function or when it disregards the structure of the Constitution that reserves appropriate questions to the States. Yet it is empathy that gives insight into where exactly no government-federal or state-should be involved.  In times past, it may have been possible to count upon church or competing private institutions to maintain this boundary between what is public and what is private, but these independent sources of moral formation have also come to overly rely on the crutch of law's coercion.

In the end, however, coerced morality is without meaning or lasting effect. In the words emblazed upon the New Hampshire license plate that will likely soon again adorn David Souter's car, we are to "live free or die.” A judge with an empathetic understanding of the Constitution would grasp all that means.

Douglas W. Kmiec is chair and professor of constitutional law at Pepperdine University and author of

Comments

Sues Krebs | 6/16/2010 - 11:11am
Dear Douglass,
If you put two people in a room for an hour, one of them may start a conversation to break the silence and the other may be comfortable in it.  One may express his beliefs openly and the other may withhold his opinion so as not to differ publicly with his companion but body language always reveals a person's position whether or not they give an opinion forth with and proudly.  How can we fault him for having a personal opinion and not being afraid to share his position openly.  All Christians belong to one family by virtue of Faith but it doesn't mean every Christian Group does things identically to the way we do as Catholics.
Susan, SJ
Michael O'Brien | 6/16/2009 - 9:43pm
I think part of the problem here - why some get quite upset at any discussion of the role of empathy in jurisprudence - is that many adults in our society have not developed along the way a personal capacity for empathy. They don't understand really what it is, how it works, or why it's important. Yet one could say one cannot arrive at a sound understanding of persons, situations, or events without it. Many remain psychologically immature in this respect. Narcissistic personalities - and there are plenty of those - are quite famously deficient in precisely this capacity. People are certainly not all the same in this regard. I think Obama wants to look at not just a potential justice's knowledge of law and our judicial system, but also to whether a candidate will posses the psychological maturity to be able to look openly at the wider range of nuances involved in any given human / legal situation before rendering a legal judgment. I would doubt that any person who lacks a capacity for human empathy would be capable of either "good judgment" or "wisdom" in any situation that involves interactions of human beings. All entail a "depth" of understanding that one does not find in all persons with law degrees and legal experience.
Tom "The Fish" Scilipoti | 5/26/2009 - 4:03pm
Great article Mr. Kmiec. I agree-empathy is a great quality and necessary, in my opinion, not only to being a just judge, but also a just human. The tough critics of empathy, I believe, must be "missing the mark." Empathy to me means listening with your heart. It's a traditionally feminine virtue but one I'm sure JC embodied. Moreover,the gift of empathy combined with a toolkit of sharp critical thinking skills in the backdrop of Constitutional reverence will make for a nice Latin American supreme court justice. Viva Sonia Satomayor!
Ricky Vines | 5/15/2009 - 12:01pm
In a similar article, Fr. Langan tells the bishops to back off because they’re just being played and that they’re not considering the big picture with all the good that’s happening. And he proposes that we go along and tolerate abortion because it is impractical to criminalize the supply. But the demand can be reduced. It may not be the perfect solution, but it is good. And the best is the enemy of the good. So, why not shift the paradigm along those lines? If we don't live as we believe, we'll believe the way we live. If we tolerate abortion, we accept that abortion is tolerable. And that starts to desensitize us. It poisons our minds and hearts that we've come to a point to allow a baby to be killed.
etoipi | 5/12/2009 - 1:42pm
“The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.” - Oliver Wendell Holmes, Jr., 1880
Jon | 5/12/2009 - 10:45am
Mr. Kmiec is an abortion enabler who, through his role as an Obama apologist, has the blood of innocents on his hands. Is the reflected glory of the President's popularity enough to replace the loss of your witness?
taad | 5/12/2009 - 7:41am
Empathy can be a value or a vice. I can empathy for Hitler and the way he was raised. Or I can have empathy for the Devil, or empathy for David Duke. Empathy is in the eye of the beholder.
peter martial | 5/10/2009 - 9:20pm
As a lawyer myself, I agree with Mr. Kmiec and have been waiting for someone to actually "see" what the President was trying to say and teach. The role of a judge, since Old Testament times in the Book of Judges to the aptly called "justices" of our Supreme Court, is to render JUSTICE, something that, spiritually, entails two gifts of the Holy Spirit, understanding and wisdom. It is not a judge's role to mechanically and legalistically apply positive law as conservatives of late (like JAD above) have argued. A computer could do that -- just feed in the facts and the law and spit out the result -- like a speed camera that mechanically issues traffic fines. We have judges and justices because we need wise human beings to decide the most important cases using wisdom and understanding. The President used the word "empathy" and was duly blasted by those who, having voted against him, can't seem to say a nice word in his favor no matter what he does or says. Perhaps empathy was not the best word but I agree with Mr. Kmiec as to what the President meant -- and properly and traditionally so -- even back to Old Testament times.
John Rogers | 5/10/2009 - 10:18am
The reasoning here illustrates much of what is wrong with current jurisprudence, where the most egregious fallacy is the judiciary's belief that the law is what they say it is, precedent and/or public be damned. Someone needs to remind the California Supreme Court that it is a creature of the people and the state constitution, not the other way around. There is ample support for Originalism...the plain words of the constitution, the minutes of the continental congress and the various state ratifying conventions, other writings of the founders. You dispute the plain meaning of the constituion when and if it---note, it's the supreme law of the land as promulgated by the consent of the governed---stands in the way of implementing your policy goals by raw judicial power grounded in....nothing. It is no coincidence that exercise of this raw judicial power undermines the legitimacy and trust of the judiciary, and people come to believe courts are not instruments of impartial justice but mechanisms for specific policy goals (see Roe v. Wade). Finally, re: the Ledbetter case, why CAN'T we rely on Congress to be on guard for improper judicial decisions? That is specifically the role of Congress as outlined in that dated, dusty, outdated Constitution thingamabob conservatives keep prattling about. Maybe Kmiec and Obabma are afraid Congress will reflect the will of the people, not the will of tenured law school academics?
Ricky Vines | 5/10/2009 - 10:16am
Criminalizing abortion is done in many countries. Why should the US make it easy and safe for anyone to murder their unborn child? Shouldn't one nation be built on principles and not the expediency of their non-enforcement? The reasoning and ideas in the article are at most sophomoric.
HerbM | 5/10/2009 - 6:31am
The Heller decision enforcing the 2nd Amendment as protecting an individual right is not controversial in any serious sense. Although, Heller won by 'only' a 5-4 majority, all NINE JUSTICES (four in the dissent) agree that this is a Right Enforceable by Individuals. The vast majority of Americans believe this as well, as did a large majority of the US Congress who file and amici brief in support of Heller, and the US Department of Justice which argued for the individual right. Even the attorney for the District admitted to this interpretation during oral arguments. The vast majority of states have similar provisions, roughly mirroring the 2nd Amendment, and 40 states have essentially "shall issue" laws regarding Concealed Carry Permits. There is no real controversy about the right to keep and bear arms being an individual right. All such controversy as does exist concerns how far this right extends ("shall not be infringed"), what arms are protected, and whether this is a good thing. But that it is an individual right (of the People) is the Constitution and is in no doubt nor controversy.
William McGovern | 5/8/2009 - 10:03pm
JAD does an excellent job of exposing the weaknesses in Professor Kmiec's definition of and case for "empathy" in a Supreme Court nominee. I would add one comment. Many of us who favor the reversal of Roe v Wade understand that such action would not make abortion illegal in most states. However, it would give back to the people the right to legislate reasonable restrictions to protect the rights of those most helpless to defend themselves-the unborn
Stephen | 5/8/2009 - 3:42pm
Come on. This is moral equivocation of the worst sort, in the face of great evil. Back in the 60s, would 'America' have ever even considered printing an article saying the following?: "Not Segregation Again" "For the past 30 years or so, segregation has dominated judicial battles. It may have a role again… Yet empathy supplies insight here, too. Segregating Black people away from White people is exactly what the president says it is: “a tragic moral choice.” Civil Rights law professors, helping Democratic presidential candidates, would insist that this choice be made criminal. After Developmentalism, this “reverse Plessy vs. Ferguson” mantra has been the liberal litmus test for Court appointment. "Yet even to me, a defender of the idea that personhood should be extended to Black people, the inadequacy of using segregation as a measure of judicial merit is obvious by its narrowness. From the standpoint of empathy, is it really likely that if Plessy is overturned, the states will criminalize segregation, sending predominantly poor White school teachers and principals to jail? And if compassion exempts these educators from incarceration, what consistent principle then sends the school district officials and administrators off to prison? With these rather basic questions unanswered, questioning a nominee about Plessy will tell us little that is coherent. "Does empathy tell us anything important about segregation? It is not, as some religious liberals claim, just a covert ratification of the practice. No, in ways far more subtle than the bloody images of beaten and tarred black men often thrust in the faces of educators confronted with the untimely admission of a black student, empathy reveals the limits of the law and the importance of giving a poor White school district, without insurance or the resources needed to sustain itself, the assistance necessary to allow it to complete its enrollment goals. "President Obama reaffirmed this point at his most recent press conference. White schools and school districts, he said, do not make this decision casually. Indeed, his own very close relationship with his White teachers left him with the profound understanding that a White teacher, more honestly and plainly than anyone else, understands and anticipates the needs not just of the Black students in her neighborhood, but of those students at 3, 12 and 28 years of age."
JAD | 5/8/2009 - 3:18pm
Well, this does it. As a Catholic Republican lawyer, I've defended Kmiec from his detractors on the right re: his comments on abortion & Obama. But with this, even I can no longer justify his position & Kmiec seems to have abandoned any notion of conservative jurisprudence. I think he has moved from the loyal opposition to full-hearted endorsement all the while abandoning what he previously stood for. 1. "Empathy" was used by the Democrats like Biden & Kennedy to try to tar & feather Alito as cripto-racist. He should know that "empathy" is code for "liberal", which jurisprudentially holds that judges should rush in where angels fear to tred. 2. Even if "empathy" can be meaningfully defined as a judicial quality, which Kmiec fails to do to my satisfaction, according to his telling it always works in favor of Obama's positions & against the holdings of the Robert's court. Imagine that. And the reasoning on Roe is of a quality unbefitting a first year law student, much less that of Kmiec's legal pedigree. Sad to see the doomsdayer's prognostications come true.
Nancy | 5/7/2009 - 12:50pm
"We are to "live free or die." And how exactly does one protect the unalienable Right to Liberty if one does not protect the unalienable Right to Life to begin with?