Empathy in court judgment does not preclude achieving justice

BOSTON — I've never been sure why Lady Justice wore a blindfold as part of her permanent wardrobe. Yes, it's supposed to be a symbol of impartiality. But it does limit her vision a bit.

So it is that I am watching the run-up to the nomination of a new Supreme Court justice with eyes wide open. We've already had pre-emptive strikes against three women on the media short list. Elena Kagan, Diane Wood and Sonia Sotomayor are getting the scary radical treatment without even getting picked.

More bizarrely, we have a full-throated campaign targeted against any candidate who might have a deep, dark secret buried in her resume. She may have, gasp, empathy.

The president has long talked about "that quality of empathy ... as an essential ingredient for arriving at just decisions and outcomes." In describing the qualifications for his first pick, he said, "I will seek someone who understands that justice isn't about some abstract legal theory ... It is also about how our laws affect the daily reality of people's lives."

Who knew that he was waving a red flag before the red-staters? Now, a phalanx of horrified conservatives has trotted out, insisting that empathy is just a code word for the sentimental liberal bias in favor of underdogs over the Constitution.

The ever-combative Karl Rove dismissed empathy as the secret handshake connoting liberal activism. John Yoo, the man who justified torture for the Bush administration, sneered at the idea of a "Great Empathizer." Wendy Long of the Judicial Confirmation Network insisted that "Mr. Obama's gold standard is the very opposite of impartiality." It would usher in justices who decided the law by their mere "feelings."

You might say that they had an overly emotional response about emotion. Indeed, you might describe the passionate assault as an advance strike on any expected female nominee. Lady Justice notwithstanding, tradition sees the law as hard, rational and male, while empathy is soft, emotional, female and generally weepy.

But let us remember that empathy is not sympathy. It doesn't require that we take sides. Nor is it an emotional shortcut that upends all legal reasoning to declare a winner. Empathy is rather the ability to imaginatively enter into the experience of others. As Harvard law professor Carol Steiker says, "We think of this as central to moral reasoning of any kind." How else to understand such moral basics as the Golden Rule?

The capacity to recognize another person's reality is not just liberal. The conservative jurist Richard Posner has described empathy as an important instrument in a judge's tool kit. It doesn't trump reason, it informs reason.