Just around this time last year, Justice David Souter announced his resignation from the U.S. Supreme Court and President Obama explained to the White House press corps that he was looking for a replacement who shared a fundamental trait of Souter's: empathy. "I will seek someone," said Obama, "who understands that justice isn't about some abstract legal theory or footnote in a casebook; 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." And then the president dropped the E bomb: "I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving at just decisions and outcomes."
You would have thought, from the shrieking that ensued, that the president was calling for Souter to be replaced by a drunk French bigamist. RNC Chairman Michael Steele, speaking on syndicated radio, immediately weighed in: "Crazy nonsense empathetic! I'll give you empathy. Empathize right on your behind!" Sen. Orrin Hatch of Utah, speaking on This Week, cautioned that if a jurist were to show empathy, "politics, preferences, personal preferences and feelings might take the place of being impartial and deciding cases based upon the law, not upon politics." And on Fox News, Sean Hannity warned that empathy is the first step toward "social engineering."
But the final nail in the old "empathy" coffin came when then-judge Sonia Sotomayor, on her second day of Senate testimony, explained that to the extent the president defined empathy as judging from the heart, she disagreed completely: "I wouldn't approach the issue of judging the way the president does," she testified. "Judges can't rely on what's in their heart ... It's not the heart that compels conclusions in cases, it's the law." Asked later whether she would allow empathy to cloud her jurisprudence, she was unequivocal: "My record shows that at no point in time have I permitted my personal views or sympathies to influence the outcome of a case ... In every case where I have identified a sympathy, I have articulated it and explained to the litigant why the law requires a different result." No surprise, then, that when President Obama on Friday listed the qualities he would seek in replacing Justice John Paul Stevens at the court, the word "empathy" was gone from the list. Thus we can witness the rise and fall of the E word in American judicial discourse.
That's too bad. Because if John Paul Stevens's career stood for anything, it's the proposition that walking a few miles in the other guy's moccasins will always make you a better judge. As Americans now begin the ritual clamor for a court that looks more like them—for more racial, gender, and ethnic diversity at the court—it's worth taking a moment to recognize that often more than anyone else at the court, it was an 89-year-old white Protestant guy who devoted his judicial career to standing in the shoes of teenage schoolgirls, pregnant women, gay Boy Scout leaders, and poor African-Americans.
So in the 2000 case of Illinois v. Wardlow, for example, when the court was asked to decide whether there was reasonable suspicion for police to stop a young black man solely because he bolted at the mere sight of a police officer, it was the majority that argued that only criminals turn and run at the sight of a cop. It was Stevens, who grew up in a wealthy white family, who understood in writing for the partial dissent, that "Among some citizens, particularly minorities and those residing in high crime areas, there is also the possibility that the fleeing person is entirely innocent" he wrote, but "with or without justification, believes that contact with the police can itself be dangerous." In last year's case involving school administrators who strip-searched a 13-year-old girl, in a deranged quest for contraband Advil, it was Stevens who recognized that the search was outrageous, and quoting himself in an earlier case: "[i]t does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude."
Empathy isn't emotional incontinence and it isn't fudging the law to help the little guy. Empathy is the power to imagine a world outside your experience, and to map that understanding onto the law. It's too bad it has become a dirty word. It sums up the very best qualities of Justice Stevens.