The Myth of Choice_ Personal Responsibility in a World of Limits - Kent Greenfield [75]
I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book; it is also about how our laws affect the daily realities of people’s lives—whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.
I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving as just decisions and outcomes.18
Obama’s critics pounced, saying that empathy was code for liberal judicial activism. They denounced Obama’s formulation for good judging, arguing that empathy allowed judges to impose their own opinions on the law rather than merely calling balls and strikes. Prominent law professor Steven Calabresi warned that asking judges to be empathetic was like removing the blindfold from Lady Justice, allowing the judge to decide in favor of whichever perspective elicited his sympathy.19
Liberals came to Obama’s aid. They liked empathy because they equated it with compassion, and compassion with mercy. Liberals like mercy, at least when it comes to tort plaintiffs or criminal defendants who are not corporate CEOs.
Both the liberals and conservatives have it wrong.
I will admit that if empathy did mean compassion, the conservatives are probably right. If the law depends on whether the judge feels sympathy for one party or the other, the judge might be too quick to base judgments on unacknowledged bias or prejudice. Liberals would not like that either.
But that is not what empathy means in the judicial context. Conservatives are wrong to see empathy as a kind of feeling. A better definition of empathy for the judicial context focuses not on how judges feel but how they think. Empathy is a dedication to listening to the particularities of the stories embedded in the cases being heard.20 As we’ve seen, the role of law is to offer room for people to tell stories about their bad choices, and to ask for an understanding of the contours of the situation in which bad choices were made. This kind of empathy is not only beneficial but crucial. More than an add-on to a judge’s list of responsibilities, it is a core obligation.
Judges need empathy to guard against bad choices and cognitive mistakes. We’ve discussed throughout this book the predictable traps humans fall into when making decisions. We are susceptible to the familiarity effect. In difficult times, new ideas get short shrift, and the status quo gets an advantage unrelated to its merit. We are guilty of motivated reasoning and confirmation bias. We are overconfident about our own predictive or analytical judgments. We trust authority. We are blind to the influence of culture. We assume the decisions of individuals acting in the marketplace are indicative of their preferences, rather than created by the market itself.
These pitfalls can be magnified when we make decisions in groups. Humans tend to herd with others, which makes us less likely to speak up in dissent unless there is a critical mass of other dissenters. If we identify too much with others in the group, we can succumb to peer pressure (even without knowing it) and tend to reinforce rather than correct the mistakes of others in the group. These defects in decision making are more pronounced in groups that are more homogeneous.21
This means that Obama’s emphasis on empathy is especially important for a nomination to the Supreme Court. By any measure of homogeneity, the Supreme Court is a dangerous decision maker. In 2010 the Court seated just the fourth female justice in its history. It has had two African Americans and one Hispanic in more than two centuries of existence, and no Asian Americans. Other aspects of its sameness are less obvious and perhaps