Tuesday, May 26, 2009, 3:47 PM

Judicial Empathy

I wrote an op-ed column that was recently published by the Daily Progress, the newspaper in my hometown of Charlottesville, Virginia. Given that President Obama nominated Sonia Sotomayor as his first Supreme Court justice today, I am re-printing my op-ed column here. The focus of this column was President Obama's use of the word "empathy" when describing his ideal judge. "Policy," however, may be the buzz word for Judge Sotomayor's confirmation hearing given her off-hand comment that "policy" is made at the court of appeals.

Judicial Empathy

When describing what he would look for in a Supreme Court Justice, President Obama said that he viewed empathy “as an essential ingredient for arriving at just decisions and outcomes.”

What did he mean by “empathy”? Some complain that it is a code word for a liberal, activist judge. Others rejoice that it is a code word for a liberal, activist judge. I think it means neither. Put aside, for a moment, that the words “liberal” and “activist” are themselves code words whose meanings depend on the person using the words.

If you actually were able to “put aside” your view, then you have exhibited that quality of judicial empathy that I believe the President was describing.

Webster defines empathy as “the experiencing as one’s own the feelings of another.” Dahlia Lithwick of Slate magazine explained that President Obama defined “empathy” in his book, The Audacity of Hope, as “a call to stand in somebody else’s shoes and see through their eyes.” This got me thinking. Legal philosophers have written about judicial empathy (perhaps not in those terms), and I have seen judicial empathy in practice. It is nothing to be ashamed of. It has nothing to do with emotions or favoring one side (or one type of litigant) over another. Rather, judicial empathy is a thought experiment that helps judges make fair, impartial decisions consistent with the rule of law.

My notion of judicial empathy comes from John Rawls’s Theory of Justice, one of the most important works of political philosophy in the twentieth century. At the time I first read Rawls in law school, the only thing I knew about political philosophy was that Hobbes believed life was “solitary, poor, nasty, brutish and short,” while Rousseau believed “man is born free.” I failed to realize that their discussion of the state of nature was designed as a through experiment to uncover the foundations of law and government. What underlying rules would persons in the state of nature agree upon to govern themselves? The answer to that question, according to social contract theory, is the justification for government and the underpinnings of the law.

Rawls took this thought experiment one step further by asking what would persons in the “original position” agree was a fair way to organize society? Persons in Rawls’s original position were placed behind a “veil of ignorance” which prevented them from knowing any of the individual characteristics about themselves. If you stepped behind the veil of ignorance, you would be unaware of your own talents, religion, gender, race, class, or abilities.

What type of rules would you want if you were in this original position behind the veil of ignorance? You would want rules that were fair to everyone since you would not know where you may end up after the veil of ignorance was lifted. You would want a basic set of minimum rights and privileges that all people could enjoy. And you would want everyone to have the opportunity to make the most of what they had been given, whatever that may be—remember if you are behind the veil of ignorance, you don’t know what your specific circumstances might be.

My idea of judicial empathy involves a similar thought experiment. The empathetic judge imagines herself to be in the shoes of the litigants, but she does not know in whose shoes she is standing. The resulting decision is simultaneously impartial and empathetic. Judicial empathy is not arbitrary. To the contrary, judicial empathy demands fealty to the rule of law because one of the things we would agree upon, behind the veil of ignorance, is that the law should be consistent, uniform and predictable.

Although I read Rawls in law school, I learned much more about the practice of judicial empathy when I served as a law clerk for two federal judges. Both of these judges were Republican appointees, but I doubt they would object if I complimented them on their judicial empathy. Although their rulings were always based on legal precedent, their decision-making process was not necessarily mechanical. After fully considering the arguments of both sides, these judges would make decisions that were impartial and fair. Although I do not profess to know everything went on inside their heads, I believe that their impartiality and fairness resulted from their ability to empathize with both sides without favoring either side. This is what I believe the President meant when he described “empathy” as a desirable characteristic in a judge.

I hope neither of the judges for whom I clerked take offense when I suggest they decided cases behind the “veil of ignorance.” Sometimes ignorance is a good thing.

Jason C. Hicks lives in Charlottesville, Virginia and is an attorney at Womble Carlyle Sandridge & Rice, PLLC. Jason was a law clerk for Judge Samuel G. Wilson in the Western District of Virginia in Roanoke, Virginia and Judge Susan H. Black on the Eleventh Circuit Court of Appeals in Jacksonville, Florida.

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