The Unbearable Lightness of Empathy

As Kagan progresses through the Kabuki of the confirmation process we can expect to hear her supporters invoke the idea of empathy as a kind of liberal counterpoint to Roberts’s umpire analogy. The more I think about empathy and judging, however, the less I think that it has any substance at all.

In the case of Sotomayor, empathy was associated with identity politics. There was some ineffable something about being a wise Latina that gave Sotomayor special insight into the way that the law effects “ordinary people.” In Sotomayor’s case one could at least construct a facially plausible story about her biography in which her experience provided some insight into “ordinary people” outside of her legal expertise.

Not so with Elena Kagan.

There is nothing in her biography to suggest any special insight into the lives of “ordinary people.” The Upper West Side (my experience with native New Yorkers is that some non-trivial percentage of them take a positive pride in NOT understanding America beyond the five boroughs), prep school, Princeton, Oxford, Harvard Law School, a Supreme Court clerkship, work at an elite law firm, the University of Chicago, the Clinton White House, HLS again, and the Solicitor General’s office. There’s nothing in there that screams, “Special connection with the poor and the downtrodden, or even with the middle class and doing fine.” From what I’ve seen, Kagan is an intelligent and decent person. She may well be able to see the world from the perspective of “ordinary people,” but if she does so it is by an act of imagination rather than memory.

None of this will keep folks from lauding Kagan’s “empathy.” If empathy is no longer tied to biography and identity politics is there anything left of it? The answer, it seems to me, is “Not much.” When empathy is invoked in contemporary debates about the judiciary, I think it’s best to simply see it as a gesture toward a set of substantive positions. To be empathetic is to be solicitous of the state in its role as regulator but less so in its role as defender of national security. It means a somewhat more pro-defendant position on criminal procedure. It means a preference for national rather than state government. Above all else, I suspect that it means holding the kinds of opinions that we all expect Elena Kagan to hold on the various cultural arguments — gay rights, abortion, etc. — that form the detritus of the sexual revolution. None of this, however, really has to do with empathy. Rather, it simply strikes me as a substantive vision of the relationship of the state to individuals, businesses, and local communities.

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13 Responses

  1. Matt says:

    Has there been much real “empathy” talk with Kagan? I have to admit that I’ve found most of the commentary, even on blogs that have some relevant knowledge, to be pretty boring and so hard to pay attention to, and I can’t imagine why I’d want to read much on the issue in the regular news, but I’ve not seen people making “empathy” a big deal in this case. Is this meant to be a preemptive strike, or are the some actual examples you’re thinking of?

    (At a more substantial level, I think a pretty plausible case can be made that “empathy” is an emotion most properly applied to the plight of the weak and powerless, “the least of these”, we might say, and that at least a plausible case can be made that this better fits with the substantive positions you note above. It’s not a rock-solid case, but it’s not implausible, either.)

  2. Nate Oman says:

    Actually, what caught my attention was this line in President Obama’s speech introducing her:

    “But while Elena had a brilliant career in academia, her passion for the law is anything but academic. She has often referred to Supreme Court Justice Thurgood Marshall, for whom she clerked, as her hero. I understand that he reciprocated by calling her “Shorty.” (Laughter.) Nonetheless, she credits him with reminding her that, as she put it, “behind law there are stories — stories of people’s lives as shaped by the law, stories of people’s lives as might be changed by the law…”

    That understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people, has animated every step of Elena’s career — including her service as Solicitor General today.”

    As for “preemptive strikes,” my goal is nothing so grandiose. I’m just trying to avoid grading…

  3. Paul Horwitz says:

    Nate, color me skeptical. Not entirely skeptical: I think empathy can be a valuable thing but agree that, like many other buzzwords in the nomination process, it is rarely used with care and seriousness. And it is certainly true that Kagan doesn’t fit the profile of “ordinary” people. (Although not many people in these positions do.) Beyond that, though, a number of things to consider.

    First, you get it wrong about New Yorkers. Many Manhattanites actually take pride in not knowing much about even some of the other boroughs, like Staten Island. They can be quite parochial. But although they have their own style of parochialism, how does that distinguish them from most people? I’ve lived in close to a dozen places in the US, and all of them exhibit signs of parochialism. I might say as a Canadian emigre that Americans in general strike me as parochial — but then, so do many people across the world. The opposite of parochial isn’t “ordinary”: parochial *is* ordinary. Its opposite is cosmopolitan, at least since the cosmopolitan Robert Bork, not many people have treated this trait as a selling point for nominees.

    Second, as I hope your reading in the virtues is convincing you, if empathy, genuinely defined, is a genuine virtue, it is one achieved by practice and inclination, not just by being “ordinary.” Lots of ordinary people are not empathetic; to the contrary, genuine empathy is an extraordinary trait. I don’t know whether Kagan possesses it or not, but her Upper West Side upbringing does not exclude the possibility.

    In any event, Obama didn’t talk about empathy; he talked about understanding that law does not just exist on the books but has an effect on the lives of ordinary people. Kagan may well understand this, as a matter of background — her father represented tenants — or just as a matter of practical wisdom. I agree that nothing in empathy prevents one from seeing that shareholders, building owners, etc. are also people who face consequences at law, and that empathy on a retail level should not preclude us from understanding the effects of law on a wholesale level. But it’s too early to reach definitive judgments on any of those things with respect to Kagan — especially because she came of age at law schools whose interdisciplinary focus often focused on the wholesale consequences and incentives of law.

    Finally, while you may be right that *some* people use empathy as a proxy for standard liberal views, just as some people use conservative judicial buzzwords as a proxy for standard conservative views, that’s not true of everyone on either side. I, for one, don’t think talking about empathy necessarily signals a preference for national over state authority, to take one of your examples — or that respect for federalism necessarily supports a reflexive support for state over national authority. Let’s not throw out the baby with the bathwater; if the terms have any value, let’s focus on using them properly, not on getting rid of them altogether.

  4. Paul Horwitz says:

    That should be, “But at least since the cosmopolitan Robert Bork,…”

  5. Paul Horwitz says:

    And “or that respect for federalism necessarily signals a reflexive support…”

  6. Bryan Gividen says:

    Paul Horowitz: “…if the terms have any value, let’s focus on using them properly, not on getting rid of them altogether.”

    I think that is precisely what Nate Oman is arguing. He juxtaposes Sotomayor’s nomination against Kagan’s nomination and points out that the former has some claim to empathy while the later has very little claim to it. His ultimate blog post thesis is, “Calling Kagan empathetic drains the word of its meaning; we should avoid using the word where it isn’t meant to be used.”

    The underlying difference between your points seems to be whether or not a person can have empathy without “earning” it. If I read Prof. Oman’s post correctly, he believes that for an upper-class intellectual to really empathize would be next to impossible. Your counter-argument focuses on whether or not an “ordinary” life is either necessary or sufficient for empathy. I think they’re getting at two different points, but I think the conclusions you both come to run parallel to each other.

  7. Paul Horwitz says:

    Bryan, I appreciate the comment and think you have nicely clarified both our remarks. I agree with Nate that we shouldn’t use the word “empathy” if that’s not what we want to talk about. And I disagree with him that it would drain the word of its meaning to call Kagan empathetic just because, on this view, her background somehow makes it impossible or unlikely for her to be empathetic. Empathy is a matter of practice and inclination, not just background. Your last paragraph nicely suggests the differences and parallels between Nate and myself.

  8. Miguel Schor says:

    I think you are right that empathy sums up the liberal response to conservative judges but President Obama has been very explicit on that score. For what it’s worth, there is some literature that I think undermines your conclusion that empathy is otherwise a term devoid of meaning in judging and suggesting, for example, that empathy is important in the “invention” of universal human rights. I don’t think, moreover, that one’s background conclusively determines one’s world views; otherwise we all need to find a new line of work since education would have no impact on one’s ideas and beliefs over time.

  9. Nate Oman says:

    I don’t think that it is impossible for Kagan to have empathy. Like Paul, I think this is a virtue that one can acquire. Rather, what I am saying is:

    (1) There is nothing about Kagan’s biography to suggest that this virtue is a particular talent of hers. It may or it may not. She is thus unlike Sotomayor, where such a claim can be made on the basis of her biography. (For what it is worth, I thought the claim with regard to Sotomayor’s biography was mostly bunk but one could at least make the claim with a straight(-er?) face.)

    (2) In these discussions I don’t think that empathy in the sense that Paul is talking about is what is actually at issue. Rather, I think that empathy is a code for “conventionally liberal.” It’s function is rhetorical, as it implies the possession of a particular virtue corresponds with ideology and implicitly suggests that conservatives lack this particular psychological aptitude.

    New Yorkers, of course, are more parochial than the rest of us, except perhaps for Canadians ;->.

  10. Bryan Gividen says:

    I did read too much into your post then. I agree with your stance in #1. My gut reaction on #2 was that, “I bet there’s a conservative correlative.” Most of the examples I came up with weren’t character traits, but were instead philosophical attitudes. (For example, “legislating from the bench” tends to be the conservative proxy for judicial rulings that they disagree with. Certainly liberals use the term as well, but my perception is that conservatives cling to it more, probably as a reaction to the Warren Court which tended to view the Constitution much more expansively than predecessors.) The closest I can come up with is “patriotism,” which conservatives tend to appropriate as meaning, “willing to sacrifice personal liberty, rights, and privileges for national security and strong dedication to national military force.” The underlying argument is that if you do not agree with that set of political ideas, then you aren’t “patriotic.”

    I think both sides would argue that they are not actually requiring someone subscribe to their political doctrine to qualify for the respective trait. However, you are right that implicit in each side’s use of the word is the absence of trait from their opposition. That is an unfortunate indictment on politics and pundits.

  11. Vladimir says:

    I do not agree with Nate, and I’m not sure I agree with Paul, for I think empathy has a rather different meaning here. The one place I do agree with Nate is in the thought that empathy may well have a substantive edge. But unlike Nate, I don’t think that’s problematic in the least, for any theory of or even gesture at legal interpretation has a substantive dimension. I think empathy as President Obama is using it ultimately means an aversion to strict formalism — that when the law, read formally (say according to its plain meaning alone) works an obvious injustice, a judge should contemplate supplementing her analysis with other tools, if they are plausible and available, in order to see if a more equitable result can be reached. You can see empathy at work, of course, in Justice Blackman’s “Poor Joshua” dissent and in his remarks in his Bowers v. Hardwick dissent about the poverty of a life without intimacy. Empathy, as I have defined it, could have changed the result in Ledbetter v. Goodyear (accural of pay discrimination claim) as well as in Coleman v. Thompson (capital habeas petitioner forfeited post-conviction review because lawyer filed one day late). And you can see this form of empathy at work in important Warren Court procedural cases such as NAACP v. Alabama (NAACP need not turn over membership lists as part of discovery in state court litigation), Henry v. Mississippi (appeal to U.S. S.Ct. available to NAACP leader accused of a seemingly trumped-up crime despite his lawyer’s failure to make a crucial contemporary objection in state court), and Fay v. Noia (allowing habeas petition despite procedural default unless the petitioner deliberately bypassed state procedures, and taking note of the “grisly choice” the capital defendant faced).

    One might contrast an empathy approach to judging with Chief Justice Roberts’ claim to follow the law no matter where it might lead: If it requires ruling for the rich, he said, then I’ll rule for the rich, however unpalatable and unjust such a ruling may ultimately be. It’s unconscionable favoritism, in this umpire-type view, to act equitably — a sentiment which echoes Justice Scalia’s claim that federal courts are not and should not operate like equitable or even common law tribunals. (Yes, it’s all substantive all the way down.)

    So what I am working toward here is the idea that empathy implies anti-formalism or pragmatism, and an understanding of the American judge as significantly equitable/chancellor-like. Empathy implies skepticism toward the faithful agent theories of interpretation (originalism and plain meaning) and more of an embrace of common law constitutionalism and statutory interpretation methods. It suggests that there is more room for an open embrace of judicial creativity in using legal tools. (See, e.g., the opinions of Robert Jackson).

    There is an amazing story in a footnote in the Hart & Wechsler casebook from the great Henry Hart about all this. Hart was a relentless critic of the Warren Court’s lack of craftsmanship. (See “The Time Chart of the Justices,” HLR 1959, for an example). Hart, in his last year of teaching, showed up in class one day and began, as usual, dissecting a Warren Court federal jurisdiciton opinion involving sit-ins in the South. But this time, he didn’t complete his dissection. Instead, he paused mid-analysis, looked up, and finally said (if memory serves), “Sometimes, sometimes you just have to do the right thing.” Given the knowledge that injustices in the South in the 1960s were cloaked in well-designed procedural technicalities, Hart was willing to say enough with formalism and proceduralism. That’s empathy in a nutshell. It doesn’t mean lawlessness; but it does mean working harder to find legal tools that may lead to a different, juster result.

    I think, in short, that Obama taps into some reasonably sophisticated legal theory, clothed in some pretty ordinary and intuitive language. I do agree, though, that it would be nice if the President and the nominee developed this approach more fully, rather than masking it all behind bland platitudes.

  12. George Conk says:

    One need not be Mother Theresa or Damien the Leper to qualify for what President Obama called empathy – being guided in thinking about the law by its impact on ordinary people. The daughter of a liberal tenants lawyer in Manhattan, a member of a family of public school teachers certainly can meet that test.

    What does not pass that test is this line of Nate Oman’s ” the kinds of opinions that we all expect Elena Kagan to hold on the various cultural arguments — gay rights, abortion, etc. — that form the detritus of the sexual revolution. None of this, however, really has to do with empathy.” “detritus of the sexual revolution” – definitely not empathic.- gwc

  13. Nate’s post and the Kathleen Parker op-ed piece that he cites do not point to any claims that Kagan either has special powers of empathy or special insights into the lives of ordinary people.

    So if I follow the logic, we should be skeptical of Kagan’s qualifications because she lacks qualities that nobody claims she has and that the skeptics do not think would qualify her if she had them.

    Well, I like this approach better than reprinting pictures of Kagan playing softball.