We can expect to hear a lot about empathy when Judge Sonia Sotomayor, President Obama's nomination to be an associate justice on the Supreme Court, appears before the Senate judiciary committee. Obama raised the subject when he identified "that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes." Conservatives immediately began taking taken pot shots at the idea of an empathetic judge.
They probably don't realize that 40 years before Obama prescribed empathy for Supreme Court justices, no less a Republican than Richard Nixon celebrated that same virtue at a ceremony honoring the service of retiring Chief Justice Earl Warren.
Nixon and Warren had been adversaries during their public careers. Warren viewed Nixon as a thoroughly unprincipled politician. And Nixon had campaigned in 1968 against the Warren Court and had promised to appoint "strict constructionists" and "law and order" jurists, terms intended and understood as rebukes to the jurisprudence of the Warren Court.
Yet on June 23, 1969, in his remarks at the Supreme Court ceremony in which Warren's successor, Warren Burger, was sworn into office, Nixon could not have been more clear in recognizing Warren's capacity for empathy and the importance of that quality to the work of the court and the progress of the nation.
Nixon said the comment by Will Rogers ("It is great to be great. It is greater to be human.") fit Warren. Nixon praised Warren as "one who has held high office in this Nation, but one who, in holding that office, always had the humanity which was all-encompassing, the dedication to his family -- his personal family, to the great American family, to the family of man. The Nation is grateful for that example of humanity which the Chief Justice has given to us and to the world."
The success of American government depended upon its ability to combine change and continuity, Nixon said. The 16 years during which Warren served as chief justice had been years of great change in America, Nixon observed, and the court had been more responsible for bringing that "continuity with change" than any other branch of our national government.
The court, as personified by Warren, had stood for "fairness, integrity, dignity" and these qualities had "helped to keep America on the path of continuity and change, which is so essential for our progress," said Nixon.
The nation certainly should have appreciated Warren's service on the Court. Under his leadership, the Court often struck down governmental practices that infringed constitutional guarantees, that disadvantaged minority groups, and that prevented democratic processes from operating.
Warren's empathetic jurisprudence was evident in Brown v. Board of Education, the 1954 decision in which the court held that the longstanding doctrine of "separate but equal" in public schools, and implicitly elsewhere, violated the constitutional rights of African Americans. Warren concluded that when a political majority required black children to attend segregated schools that practice generated 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." That consequence of racial segregation denied black Americans the "equal protection" the Constitution required.
The strict constructionists protested that conventional arguments based on the Constitution's text, the framers' intent and precedent supported racial segregation. Yet the Court reached its just result by infusing the constitutional concept of equal protection with moral meaning informed by empathy.
Similarly, in 1967, the Warren court held in Loving v. Virginia that a state statute that prohibited white and black citizens from marrying violated the Equal Protection Clause. In doing so, the court rejected the claims of strict constructionists that marriage was entirely within the province of the states and that the state law treated whites and blacks alike. Warren and his colleagues felt the injustice of denying a biracial couple the right to marry and understood that such statutes reflected notions of white supremacy.
Brown and Loving were among the Warren Court decisions in which the Supreme Court brought constructive change by recognizing "that quality of empathy . . . as an essential ingredient for arriving at just decisions and outcomes."
Nixon was right to praise that virtue in Chief Justice Warren in 1969. Imagine where our country would be without it.
by 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.
Republished with permission from the History News Service.