In Defense of Judicial Empathy - Thomas B. Colby - George Washington University Law School
President Barack H. Obama has repeatedly stated that he views a capacity for empathy as an essential attribute of a good judge. And conservatives have heaped mountains of scorn upon him for saying so—accusing him of expressing open contempt for the rule of law.To date, the debate has been surprisingly one-sided. One federal judge has recently noted that “President Obama’s statement that judges should have ‘empathy’ was met with strong criticism from his opponents and uncomfortable silence from his supporters.” No one has yet offered a sustained scholarly defense of the President’s call for empathy in judging.
This Article seeks to fill that void.
Part I summarizes and critiques the agonizingly simplistic and misleading public and political debate over the proper role empathy (and its popular adversary—umpiring) in the judicial craft. It laments the success that the President’s critics have had in misleadingly portraying the judicial selection process as a choice between conservative judges who simply call balls and strikes and decide all cases according to determinative rules set down by the governing sources of law, and liberal judges whose relianceon empathy amounts to ignoring the law and deciding cases in favor of whichever party seems more sympathetic.
Part II then examines the treatment of the President’s call for judicial empathy at the hands of conservative legal intellectuals, which, disappointingly, tends to be only marginally more nuanced....