May 7, 2010

The trouble with empathy

Empathy is a hard-to-define concept that does not help when evaluating judicial candidates

Watch Sunday Night Baseball on ESPN and no doubt you’ll hear Hall of Fame baseball player and mediocre baseball announcer Joe Morgan use the c-word: “clutch.” It’s one of many descriptions that baseball commentators—as well as managers and players and fans and everyone else—use to evaluate players’ performance. “Clutch” players, the theory goes, come up with the big hit when the team needs it; they’re “grinders” who hustle and make “quality outs,” scrappy players who know how to bunt but can’t hit many home runs. They defy the odds, and help their team win every game, even when they don’t get a hit. Such a player has lived in baseball lore since Abner Doubleday invented baseball during the Civil War (this, of course, is lore itself). But when Baseball Prospectus ran the numbers, they found that such players basically don’t exist. If a player is good in general, he’s just good in the clutch. If he’s not, he’s not.

Clutch is to baseball what empathy is to the Supreme Court: Both can exist in a single moment—that is, a ballplayer can wrap out a clutch base hit and a jurist can write an empathetic decision. However, neither trait is all that helpful in terms of evaluating a potential major leaguer or potential justice.

Empathy, like clutch, is often in the eye of the beholder. In fact, the attachment of the empathy label says more about the beholder than it does the judge in question. This is abundantly apparent in Dahlia Lithwick and Sonja West’s recent piece in Slate, “The Unsung Empathy of Justice Stevens.” (We’ll hold aside the ridiculous use of “unsung” here—have they read any of the gushing profiles about Stevens recently?)

Lithwick and West cite a litany of cases in which Stevens was supposedly empathetic, but for every case that they could name in favor of Stevens’ empathy, I could cite one against it. Take Kelo v. City of New London, where Stevens displayed his “empathy” by denying a woman the right to keep her family’s property from government-forced takeover. Take Gonzales v. Raich, in which Stevens voted to maintain federal laws that criminalized the use of medical marijuana. Even in the cases Lithwick and West do offer as proof of Stevens’ empathy, it’s not always so easy to say which side is empathetic and which side isn’t. In one example, Lithwick and West praise Stevens’ compassion for would-be criminal defendants. But can’t it go the other way? What if I have empathy for potential victims of crimes rather than potential criminals? One man’s empathy is another man’s callousness.

No doubt Judge Stevens might respond that in all these cases he was just following the law. Fair enough! But that’s the problem with empathy: There can be a real tension between an empathetic decision and a legally valid one. Perhaps Stevens really did feel empathy for the medical-marijuana user or the property owner, but felt bound by law or precedent to find against them.

And maybe more conservative justices feel the same type of empathy, but feel bound by judicial philosophies to come to results that are sometimes unpleasant. And as in the criminal defendant example, empathy offers little guidance in cases where both sides can stake claim to it. I’m empathetic for criminal defendants, shouts one side; I’m for victims’ rights, counters the other. What is the empathetic judge to do in such situations? Similarly, there are no clear standards for evaluating or determining a judge’s empathy—the empathetic decision, it seems, is whatever the commentator’s own policy preference is. In fact, to paraphrase a quote from the Supreme Court, all empathy advocates can say is that they know it when they see it.

—Matt Barnum is a fourth-year in the College majoring in Psychology.