By Thomas B. Colby. Full text here.
President Obama has repeatedly stated that he views a capacity for empathy as an essential attribute of a good judge. And conservatives have heaped mountains of scorn upon him for saying so—accusing him of expressing open contempt for the rule of law. This Article seeks to offer a sustained scholarly defense of judicial empathy. Empathy is properly defined as the cognitive ability to understand a situation from the perspective of other people, combined with the emotional capacity to comprehend and feel those people’s emotions in that situation. This is an essential characteristic of a good judge. Legal doctrine, at both the constitutional and subconstitutional level, is permeated with reasonableness and balancing tests and other doctrinal mechanisms that cannot possibly be employed effectively unless judges are able to gain an empathic appreciation of the case from the perspective of all of the litigants. A judge can neither craft nor employ legal doctrine competently if she is not willing and able to understand the perspectives of, and the burdens upon, all of the parties.
Indeed, a judge who believes in the popular portrait of judges as umpires, and who rejects as illegitimate calls for judicial empathy, will fail to realize that, while he thinks that he is simply calling objective balls and strikes, he is in fact unwittingly giving disproportionate weight in his doctrinal calculus to the interests of those whose perspectives come most naturally to him. By contrast, the ideal judge has a talent for empathy and makes a conscious effort to empathize with all parties, thus ensuring that she is not subconsciously undervaluing the interests of those whose perspectives she does not instinctively appreciate. Empathic judges do not exceed their appropriate role as part of the judicial branch, and they do not improperly take nonlegal factors into consideration. They simply use empathy to ascertain and make sense of the relevant facts and to accurately apply the relevant legal factors—thus fulfilling, rather than abdicating, their role within the judicial branch. They do not place their thumbs on one side of the scales of justice, altering the delicate balance crafted by the law. They simply use the tool of empathy to determine the proper weight to be placed on each side of the scale, so that they can properly decide cases according to the balance crafted by the law. Far from being the enemy of judicial neutrality, empathy is in fact necessary to impartial judging.