Legal Commentary

Empathy was back yesterday, with Republican Senators again trying to push the nominee to adopt or disavow President Obama's stated vision of judging. This time it was Senator Kyl and the following exchange:

Kyl: In the time of sentencing, a trial court might be able to invoke some empathy, but I can't think of any other situation where, at least off the top of my head, it would be appropriate. Can you?

Kagan: Senator Kyl, I don't know what was in the -- I don't want to speak for the president. I don't know what the president was speaking about specifically. I do think that in approaching any case, a judge is required, really -- not only permitted, but required -- to think very hard about what each party is saying, to try to see that case from each party's eyes, in some sense to think about the case in the best light for each party and then to weigh those against each other. . . . But at the end of the day what the judge does is to apply the law. And as I said, it might be hard sometimes to figure out what the law requires in any given case, but it's law all the way down.

I mentioned earlier that I liked the answer for how it brought the adversary system and the role of attorneys and parties into the judging mix. But what I really liked about the answer is that Kagan just defended the President's point on empathy, although no one caught it.

Remember that empathy is not synonymous with sympathy (Kyl's question either ignored or missed the difference; what happens at sentencing would be sympathy). Empathy literally means the capability of experiencing someone else's emotions and feelings; colloquially, it means being able to put yourself in the other person's shoes and to understand where she is coming from. An empathetic judge truly listens to the parties and tries to put herself in the party's shoes in hearing and trying to understand those arguments. Well, isn't that precisely what Kagan meant by "see[ing] that case from each party's eyes"?

An empathetic judge does not decide a case out of sympathy for one party or because she feels bad or sorry for that party. And no one suggests any judge does so; it is not the call for lawlessness that so many Republicans and conservatives claim. Empathy is only a way of listening to the parties and trying to understand their arguments. This might affect the outcome, of course. But that is because the parties' arguments always might affect the outcome. The point of empathy is that the judge should really listen and try to understand and not have already made up her mind.

When I heard this exchange live, it actually sounded as if Kagan was linking this silent empathy to "law." That is, the judge must listen to the parties as part of the process of figuring out what the law is and what the law requires. That listening to the parties (which inherently involves empathy) is part of "law all the way down." That connection does not come through in the transcript quite as well.

But maybe we are getting closer.