Orin Kerr thinks that “empathy” means liberal judges putting their thumbs on the scales of justice to make the cases come out they way they’d like them to come out. He’s agin it.
But of course no one’s fer it, stated that way. This might be a time for a quick look at a dictionary; here’s a shortened version of Merriam-Webster Online:
Empathy. Understanding, being aware of, being sensitive to, and vicariously experiencing the feelings, thoughts, and experience of another.
Of course everyone has the capacity for empathy to a greater or lesser degree. The capacity tends to diminish as the the difference in situation between the empathizer and the empathized-with increases.
For example, like most actors on the American political scene, I can more easily imagine myself writing legal opinions at OLC than I can imagine myself as an Afghani peasant being tortured by a CIA contractor. That helps account for the large number of people who (say they) oppose torture in principle but are horrified at the thought of Judge Bybee or Professor Yoo suffering any professional inconvenience as a result of having lawlessly enabled torture to happen. There, but for the grace of God …
Let’s take a couple of examples of judicial non-empathy.
In the oral argument in Bush v. Gore, Sandra Day O’Connor, who despite being no longer young was fit and alert (and well-educated and socially privileged) appeared to be unable to comprehend how the Florida punch-card ballot instructions that she found limpid and easy to comply with might have seemed otherwise to someone with defective eyesight, diminished fine motor control, cognitive impairment, limited literacy, and poverty: all characteristics statistically correlated with higher rates of unintentional under-voting. Justice O’Connor simply assumed that since she wouldn’t have had a problem following the instructions, there was no need to consider the problems of anyone who did have such a problem, and therefore that the Florida “clear intent” standard needn’t be used to count any votes that weren’t perfectly cast: for example, votes where the stylus didn’t entirely penetrate the punch-card. That’s what “lack of empathy” means.
Or take Justices Thomas and Scalia. In a case I remember but can’t find right now, Justice O’Connor had previously demonstrated her substandard level of empathy in Coleman v. Thompson. The court-appointed appellate attorney for an indigent death-row defendant blew a filing deadline by three days, and the Supreme Court had to decide whether the lawyer’s default could be used to deprive the defendant of the chance to argue his innocence.
Now the law of agency holds the principal responsible for the actions of the agent. That makes sense: if I choose an agent who doesn’t do what I wanted him to do, the burden of that mistake ought to be on me, not on whoever the agent dealt with on my behalf. Otherwise no one would be willing to deal except directly principal-to-principal.
In the death-penalty case,
Scalia and Thomas Justice O’Connor opined that, since a lawyer is the agent of his client, the client is fully responsible for the lawyer’s mistakes. End of appeal.
But of course that line of reasoning makes sense only with respect to agents chosen by, and accountable, their principals. The death-row inmate hadn’t chosen his appeals lawyer and had no way to control the lawyer’s behavior. “His” agent had been chosen for him by the very state that was trying to put him to death. But because O’Connor
Thomas and Scalia couldn’t imagine herself as an indigent defendant, the sheer illogic of applying the agency doctrine in this case doesn’t seem to have occurred to her. On the other hand, Justice Thomas, unlike his Red-Team brethren, was able to summon empathy for black families terrorized by cross-burnings. One good reason for “diversity” on the bench is to extend the range of litigants who have at least one judge who understands where they’re coming from.
So that’s what “empathy” means in a judge: the cognitive capacity to put oneself in the position of someone differently situated, rather than taking what used to be called the “reasonable man” standard to refer to someone just like the judge and his rich, white, male friends. It’s not a license to cheat.