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&rsquot 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: &ldquoa 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.