Over at the Marquette University Law School Faculty Blog, I have posted on the problems with empathy in judicial decisionmaking in response to a post by my colleague Ed Fallone on the importance of logic in constitutional interpretation.
The problem with the President's emphasis on empathy are twofold. First, the type of empathy he called for (at least during the campaign) does not seem to be ideologically neutral. He says he wants judges 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." He doesn't call for empathy for religious folks who face what they see as a hostile secular culture, the victims of crimes, working families burdened by taxes, small businesses hampered by regulation or the unborn.
Was that an oversight? Perhaps, but it's an oversight that is intrinsic to any method of judicial decisionmaking that privileges the personal preferences and insights of the judge. We may all have empathy but not to the same degree for the same people. Too much emphasis on empathy threatens to substitute the views of the judge for the demands of the law.
This leads us to the second (and larger) problem. It's not that empathy is completely irrelevant to application of the law. It took empathy to see that the equal protection guarantee adopted in the 14th Amendment is inconsistent with segregation. The difficulty is in making it more important than it is. Obama does not say that empathy is a good quality for judges to have. He says that empathy for the groups he describes is "the criteria by which I'm going to be selecting my judges." (emphasis supplied)
But, as I have argued, an overemphasis on empathy leads to a result-oriented jurisprudence. It substitutes the preferences of the judge for the laws that the people's elected representatives have enacted. Lawyers are fond of saying that "hard cases make bad law." One of the reasons for that is empathy. We don't want to allow a bad result even if the law requires it. But to follow the law rather than the heart is what a judge is supposed to do.
There are cases where the proper legal result is unclear. There are cases where a judge must make an educated judgment about what a principle means and how it is best served. As I've said, empathy may play a role in that, but only in the service of applying some norm based in an authority outside of the judge's own predilections. Empathy has its place, but it ought not to be "the criteria" for selecting judges or deciding cases.