Empathy and the Law

Posted by Matthew Liebman, ALDF Staff Attorney on July 17, 2009

“Call it empathy, call it prejudice, or call it sympathy, but whatever it is, it is not law.”
-Republican Senator Jeff Sessions of Alabama

On Monday, the Senate began its confirmation hearings for Judge Sonia Sotomayor, President Obama’s nominee to replace Justice David Souter on the United States Supreme Court. Sotomayor, who, if confirmed, would become the first Latina justice, faced predictable opposition from conservative Republicans, but perhaps most interesting were comments by Jeff Sessions, the ranking Republican on the Senate Judiciary Committee. (Senator Sessions himself was denied a spot on the federal bench at the district court level in 1986 based in part on allegations about his racial insensitivity.)

During the Committee’s hearing last Monday, Sessions focused on comments that President Obama has made about the role of empathy in judging. In particular, Sessions quoted comments that then-Senator Obama made during the confirmation hearings for current Supreme Court Chief Justice John Roberts. Obama stated that in a limited number of cases:

adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy. . . . [I]n those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.

In response to these statements, many conservative politicians and commentators have denounced Obama’s call for empathy, essentially asserting that an empathic temperament ought to disqualify one from being a judge.  According to the chief counsel of one conservative group, “[a] judge is supposed to have empathy for no one . . . .”  For his part, Sessions expressed his fear that “our system will only be further corrupted” by judicial empathy.  (It is hard to think of a more damning indictment of a legal system than that it would be corrupted by empathy.) According to Sessions, “[e]mpathy for one party is always prejudice against another.” 

Sessions’ statements reveal not only a surprising naiveté about how the law actually works in practice (judges are confronted on a daily basis with legal questions that cannot be definitively answered using conventional tools of legal interpretation), but it also reveals a fundamental misunderstanding of what empathy is. A willingness to consider the difference of the Other, to acknowledge that one’s own life experiences are not universal, is not “prejudice.” It is the foundation of ethics and justice.

I’ve written before about how important it is for the animal law movement to embrace and support compassionate and empathetic judges. The judge I clerked for, the late Warren J. Ferguson, was a model of judicial empathy, a judge committed to justice. These are the kinds of judges who do not shy from staring down outdated prejudices, not simply to flout precedent, but to maintain their fidelity to justice. President Obama was correct when he stated that the “quality of empathy, of understanding and identifying with people’s hopes and struggles [is] an essential ingredient for arriving at just decisions and outcomes.” (For the record, Judge Sotomayor expressed her own disagreement with Obama’s statements on judicial empathy.) 

Empathy is essential to the advancement of animal law. Until we are willing to empathetically consider the positions of animals, on their own terms and without condescension, we cannot begin to rethink the legal conventions that maintain the oppression of animals: that animals are property, that they lack interests, that their suffering is trivial. The late philosopher Jacques Derrida put the relationship between violence, animals, pathos, and the law poetically:

Everybody knows what terrifying and intolerable pictures a realist painting could give to the industrial, mechanical, chemical, hormonal, and genetic violence to which man has been submitting animal life for the past two centuries. . . .  If these images are “pathetic,” if they evoke sympathy, it is also because they “pathetically” open the immense question of pathos and the pathological, precisely, that is, of suffering, pity, and compassion; and the place that has to be accorded to the interpretation of this compassion, to the sharing of this suffering among the living, to the law, ethics, and politics that must be brought to bear upon this experience of compassion.

Those who have considered the animal, who have responded to animal suffering with compassion, must bring the law to bear on our pathos. Yet in defining justice as the exclusion of empathy, as apathetic, critics like Sessions risk losing justice itself, replacing it with “just law,” which no longer aspires to justice.