Judging Judges: Empathy as the Litmus Test for Impartiality

Rebecca K. Lee

Thomas Jefferson School of Law


University of Cincinnati Law Review, Vol. 82, p. 145, 2013
Thomas Jefferson School of Law Research Paper No. 2460626

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.

Number of Pages in PDF File: 63

Keywords: judging, empathy, judicial decisionmaking, judicial impartiality, judicial objectivity, judicial nomination, judicial appointment, judicial confirmation

JEL Classification: K40

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Date posted: July 1, 2014 ; Last revised: July 28, 2014

Suggested Citation

Lee, Rebecca K., Judging Judges: Empathy as the Litmus Test for Impartiality (2013). University of Cincinnati Law Review, Vol. 82, p. 145, 2013; Thomas Jefferson School of Law Research Paper No. 2460626. Available at SSRN: https://ssrn.com/abstract=2460626

Contact Information

Rebecca K. Lee (Contact Author)
Thomas Jefferson School of Law ( email )
1155 Island Avenue
San Diego, CA 92101
United States
619-961-4268 (Phone)

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