Judging Judges: Empathy as the Litmus Test for Impartiality
63 Pages Posted: 1 Jul 2014 Last revised: 28 Jul 2014
Date Written: 2013
This Article examines the role of empathy in judging, which has been directly raised and questioned in recent years, in light of the discussion surrounding judicial nominations and appointments to the Supreme Court. President Barack Obama was right to emphasize that empathy is an important quality to be found in a judicial nominee, but his public support for empathetic judging was unfortunately cut short due to the political controversy and misunderstanding surrounding what empathy means. The opportunity remains, however, for a renewed discussion regarding judicial empathy by expressly connecting it to our vision of judicial impartiality. This Article makes an affirmative case for empathetic decisionmaking and argues that empathetic judging is necessary for objective adjudication. Consequently, when evaluating judicial candidates and judges, their exercise of empathy should be used as a litmus test to determine whether they will or do engage in impartial decisionmaking. Such a test would recognize that judges have their own tendencies in how they view various types of cases and with which party they tend to identify. This tendency particularly matters in cases that raise questions of inequality and perspective, and also involve a highly factual inquiry in applying the law, such as employment discrimination cases. These cases importantly depend upon how the judge hears the litigants’ stories. Further, since many workplace discrimination suits do not make it to a jury and instead are decided solely by the judge on summary judgment, it is imperative that judges fully consider each party’s side with empathic effort. To illustrate, this Article examines case examples in the employment discrimination context and concludes with proposals to require and enhance the use of empathy in adjudication.
Keywords: judging, empathy, judicial decisionmaking, judicial impartiality, judicial objectivity, judicial nomination, judicial appointment, judicial confirmation
JEL Classification: K40
Suggested Citation: Suggested Citation