Should Judges Have Empathy, Compassion or Neither One?

During the hearings on the confirmation of Justice Sonia Sotomayor to the Supreme Court, there was an interesting debate over the role of “empathy” and “compassion” in decision-making by judges. In praising Sotomayor, President Obama commented that empathy and compassion are some of her strengths. In contrast, some conservative opponents argued that a judge who empathizes with others or has compassion for them her will ignore the law in favor of advancing her own agenda. For example, a recent column in American Thinker says: “What America needs right now is courage and mutual respect -- not empathy and sensitivity.”

Should judges have “empathy” or “compassion” and what is the difference between these two ideas anyway? Webster’s New World Dictionary defines “empathy” as the “projection of one’s own personality into the personality of another in order to understand him better.” If you appear before a judge someday and have to explain your particular circumstances, would you want a judge who could mentally step into your shoes for a few minutes? I certainly would. The judge might still rule against you, send you to prison, deny you child custody, or take whatever action the law demanded. But one of the most frustrating, even infuriating, situations one can face is that those who have power over you do not understand your situation.

It is true that Supreme Court Justices don’t decide prison sentences or make rulings in child custody cases. They usually make purely “legal” rulings rather than decide facts. However, these legal rulings including far-reaching interpretations of the Constitution that must take into account real-world personal problems: Should a non-English speaker have a right to an interpreter in legal proceedings? Should the law require that the government provide an elevator to take a disabled person to an upper floor hearing? Should the law allow execution of a mentally disabled person? These and a thousand other cases require Supreme Court Justices to understand, as much as humanly possible, the effects of the law on individuals whose lives are very different from theirs. And, this requirement does not stop with the person who is a party before the court, for example, the defendant in a criminal case. It extends to the victims of a crime and their families, all those who might be affected significantly by a decision. It seems obvious that we want judges who understand the effects of their decisions on real people. Thus, President Obama was right that empathy is an important quality for judges, even Supreme Court Justices.

Although the word “compassion” can connote sympathy or pity, it can also mean a feeling of caring for others, even for those we do not know. In fact, it is the best word we have for genuine love of all other human beings. Should a Supreme Court Justice, or any judge, have compassion? Again, some conservatives say no. For example, Christopher Lasch in his book The Revolt of the Elites, says: “A misplaced compassion degrades both the victims, who are reduced to objects of pity, and their would-be benefactors, who find it easier to pity their fellow citizens than to hold them up to impersonal standards, attainment of which would entitle them to respect."

In The Uncertain Believer, I argue that compassion is the highest value in life. There are certainly many other worthy values, but none is as important or as central as this one. In fact, we can think of God as the central unifying idea that love of others is the highest value in life. The centrality of this value means that we should have compassion for others in whatever we do. That does not mean judges should twist the law because they “feel sorry” for someone who the law says should lose a case just as parents must discipline children whom they deeply love. Our professional, legal or moral obligation may be to send someone to prison, even to launch missiles on a terrorist camp. But in all cases, we should recognize that the people who are affected are human beings, not objects. The point is that the starting point for our basic approach to life should be compassion for others. That gives us a framework for living, from which we can carry out our responsibilities and live up to this highest value in life, or at least come as close as we can.