Commentary

We're supposed to see empathy as a bad thing?

by Michael Freeman

Before nominating Judge Sonia Sotomayor to the U.S. Supreme Court, President Obama said he viewed the "quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes."

Ultraconservatives immediately protested, labeling empathy as "lawlessness," "social engineering" and "activism."

Unfortunately, following the now common and safe path to confirmation, Sotomayor declined to discuss empathy, saying of judges, "We apply law to facts. We don't apply feelings to facts."

If only justice were that easy. Outside of the charged partisan atmosphere of the confirmation process, there exists a real justice system. We would benefit from an honest discussion of the role empathy should play in that system.

Empathy means understanding what it might be like to be another person. It is distinct from its cousins, sympathy and compassion, and its distant relative, bias. Those describe something beyond simple understanding -- something more like a predisposition to rule in favor of a side, at times contrary to what the law might say.

In contrast, empathy seeks to understand at the level of the heart, and to apply the law with that full understanding.

Let's be clear: Nobody is saying empathy should trump the law or the facts. But it is an important tool in the judicial tool box. Those outraged by the president's remark should explain why a judge should not try to understand complicated legal problems in every way possible.

Chief Justice Roberts may believe that a judge's function is like that of an umpire, just calling balls and strikes. But in the real world the questions that judges -- and prosecutors -- must address are not that simple, and the consequences of judicial decisions often change lives forever.

The law is often a limited guide. How can a judge decide the best interests of the child -- a common standard in juvenile and family law -- without at least trying to understand the child's "hopes and struggles"? Should a judge purposely remain ignorant of the struggles of a victim of domestic violence, or the mother of a murdered child?

Just like intelligence, creativity and work ethic, empathy varies from person to person. At the low end, one senator said he doesn't know what empathy means. Yet most of us tend to believe that broader life experiences -- what some might even call diversity -- give a person a leg up in the empathy department.

The idea is not new. More than 125 years ago, in "The Prince and the Pauper," Mark Twain made a convincing, and uniquely American, case that a king (anointed for life like a Supreme Court Justice) would make wiser and more just decisions after spending time getting kicked around London as a pauper.

Why should Supreme Court justices be any different?

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Michael Freeman is Hennepin County attorney.