Friday, July 17, 2009
Senate Minority leader Jeff Sessions has, what I consider to be a jaded conception of empathy and its role in judging. Presumably, in his view, empathy is a squishy, biased response to a litigant that distorts the “neutral, “impartial,” perspective a judge must adopt to dispense justice. Empathize with litigant X entails prejudice against litigant Y. The conclusion simply doesn’t follow and more important it distorts judging. I may feel the pain of firing someone or disciplining my child and yet, if I’m honest and fair, I will carry through with the firing or disciplining anyway. Anyone who can’t do this shouldn’t be a judge. Moreover, any decision-maker regarding the complex interests and conflicts of several people should be able to feel the loser’s pain and ratify the loss nonetheless. This is simply a feature of practical reasoning about the interests of other people. The conflation of empathy for X and judging in favor of X simply on the grounds of empathy is fundamentally fallacious and dangerous. Empathy–feeling someone else’s pain–helps a judge see a relevant fact of the conflict that the non-empathetic judge fails to see. It serves the cardinal principle of practical reasoning: know all the facts before you decide. It in no way dictates a result; it simply guarantees the result to be based on all the relevant facts.