In voting on President Obama’s nomination of Elena Kagan for the Supreme Court this week, senators should consider her legal ability and constitutional vision, but also her capacity to be an empathetic justice.
Republicans mocked President Obama when he suggested that empathy was an important ingredient in a justice. In fact, the president was simply repeating the insight Theodore Roosevelt uttered more than a century ago when he explained to his close friend, Sen. Henry Cabot Lodge, why he was inclined to nominate Judge Oliver Wendell Holmes Jr. to the Supreme Court.
T.R. recognized that those who become judges invariably have had close association with wealthy and powerful people. Those relationships dispose them to understand perspectives of the successful classes. But would they give a fair shake to the less fortunate who were outside the professional or social circles that shaped and reflected their attitudes?
Roosevelt thought it “eminently desirable” that the Supreme Court show its “entire sympathy with all proper effort to secure the most favorable personal consideration for the men who most need that consideration.” He appreciated Holmes, who could “preserve his aloofness of mind so as to keep his broad humanity of feeling and his sympathy for the class from which he has not drawn his clients.”
If anything, Obama’s comment was more neutral than Roosevelt’s. Roosevelt twice used “sympathy” which connotes identification with, or bias toward, another. “Empathy,” Obama’s misconstrued word, simply implies an understanding of, and sensitivity to, the feelings or experiences of another, not any predisposition in favor.
In context Roosevelt and Obama were making the same point, that effective judging requires sensitivity to a wide range of experiences. It is relatively easy for judges, like other human beings, to relate to experiences and perspectives they have shared. What’s difficult, for judges and for the rest of us, is to comprehend those to which we have not been exposed.
That reality sometimes inclines judges to favor those whose positions and circumstances are familiar. The bias may be unconscious but that does not make it any less real or decisive or unfair.
The Republican Roosevelt and the Democratic Obama recognized that empathy was an important corrective to these hidden preferences. Far from conferring favoritism or setting law aside, as Obama’s critics contend, T.R. and Obama understood that empathy is often a prerequisite for impartiality.
Justice Holmes’s great colleague, Justice Louis D. Brandeis, captured the Roosevelt-Obama insight when he wrote that “knowledge is essential to understanding, and understanding should precede judging.” A judge cannot fairly assess something he or she does not understand and they cannot understand that which is unfamiliar if they do not make a real effort to relate to it.
Whether Kagan is empathetic may determine how she will act when the court faces the watershed cases that often define the jurisprudence of a generation.
The quality of empathy, which Obama’s critics ridicule, was critical in decisions which all now celebrate. Brown v. Board of Education declared racially segregated education a violation of the Equal Protection Clause because it created in African-American children a “feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” By viewing the world from the perspective of black children, the court identified the moral wrong in segregation even while some strict constructionists saw the decision as lawless.
And imagine the national embarrassment America would have been spared in Korematsu v. United States, the case that sanctioned internment of loyal American citizens of Japanese descent during World War II, had the court followed Justice Robert Jackson’s empathetic dissent, which, unlike the majority opinion, tried to understand the impact of imposing a racially motivated penalty on innocent Americans.
Although Roosevelt was a great Republican president of the 20th century and a hero to modern Republican luminaries such as George W. Bush, John McCain, Karl Rove and others, the idea’s pedigree has not protected Obama from partisan caricature of his commonsense observation.
That’s too bad. It has led some to distort as inconsistent with impartiality a quality that is really designed to help achieve it.
To their credit, Theodore Roosevelt and Obama recognized that a judge must make special efforts to understand the thoughts and perspectives of those whose experiences she has not shared. It’s time for Obama’s critics to stop distorting his statement and pretending that this sensible insight is subversive to the law or judging.
Let’s hope that senators of both parties include this bipartisan criterion as a desirable trait in a justice when they debate and vote on the Kagan nomination this week.
Joel K. Goldstein
Joel Goldstein is Vincent C. Immel Professor of Law at the Saint Louis University School of Law and a writer for the History News Service.
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