Thursday, May 28, 2009

Empathetic v. Conservative Judges

I am not sure what the press hopes to achieve by framing opposition to the nomination of Sonia Sotomayor as racism.

The real meat of nomination debates is judicial philosophy. If American were to engage in an in-depth conversation about the idea of an "empathetic" judicial philosophy; I suspect they would find the philosophy lacking.

An empathetic judge is a judge who places substantial weight on who a person is in their decision.

The idea sounds great until people realize that there is a 50% chance that the judge will empathize with the other party in the case. In a world with judges ruling on empathy is a crap shoot. Lawyers who learn to posture to foibles of the empathetic judges will be able to sweep up, while the public at large would be diminished.

When one looks, one finds empathetic judges at the heart of many of the historic injustices of the world.

The whole Jim Crow judicial system was run by judges who empathized with the person who felt uncomfortable using the same water fountain as an African American.

In Europe one found the Jewish population driven into the ghetto as judges systematically geared their empathy to the Christians.

Judges, who tend to be part of the ruling class, tend to empathize with the ruling class.

A much more interesting debate is the debate between an activist and conservative judge. An activist judge is a judge seeking to re-engineer society through rulings. A conservative judge is one who concentrates on the accuracy of argument and values consistency in the law and dislikes changing precedence.

The name "conservative judge" is not all that enticing until one thinks about the way the court works in society at large. The people living with a conservative judiciary have an easier time interacting in society as the rules become well known.

It is much harder to live in a world where judges are actively trying to mix things up, or when there are major changes in decisions based on the feelings of the current empathetic judge.


Ran said...

this of course is unshakeable reasoning if we accept your definition of both empathetic and conservative law. which we should not do. our legal system is actually defined on empathy rather than rigidity, thus the use of juries, arbitration, and... wait for it... judges!

so that makes what you've written here just a nonsensical attempt to appear legal educated, achieving only a foolishly simplistic rendition of legal scholarship that serves only to make one like myself, making a living teaching this very scholarship to curious young minds laugh heartily at your suppositions

y-intercept said...


You are correct that the 6th ammendment gives people in criminal court the right to an "impartial jury."

Did you know that the Supreme Court does not have a jury?

It does not because the Supreme Court is something different than the local criminal court.

I came close to writing a paragraph to remind people that the Supreme Court is different from a local court. My posts are too long winded, so I skipped it.

Because the courts are different, empathy plays a different role.

The judge in a local court might make a decision based on empathy with one of the party. That decision affects one case.

The Supreme Court handles cases about precendent and class basis. So, the empathetic supreme court justice is making class distinctions in rulings.

BTW: Empathy is not the foundation of arbitration. Arbritration and mediation are about finding a mutually beneficial solution to a dispute. If the arbitrator has empathy for one party and makes a biased decision, then the arbitrator will fail to make a mutually beneficial decision.

Empathy can undermine arbitration.

Arbitration in the health care industry keeps running into the problem that powerful hospitals are good at finding arbitrators sympathic to their view.

The success of arbritation depends on the arbitrator being unbiased.

Scott Hinrichs said...

There is a reason that the statue Justice depicts a blindfolded woman holding a sword in one hand and balanced scales in the other.

The job of a justice in law parallels that of an umpire or referee in sports. The job of such officials is to determine how actions on the field of play comport with the official rules. Fans get upset when they perceive that an official is favoring one team over another. Such favoritism is unjust both on the field of play and in the court room, even if it is well intentioned.