Empathy matters

Women: Imagine you’ve been having problems with pre-menstrual depression or unpleasant menopausal symptoms. Men: Imagine you’re having problems that are probably prostate-related, or maybe you’re having trouble getting it up. All else being equal (though of course it never is), would you rather see a male or a female physician?

Empathy matters. That’s why I’m not worried about the line from Sonia Sotomayor’s 2001 lecture, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

Yes, she needs to explain what she did and did not mean—and I’m sure she’ll be given the opportunity to do so. Chances are, she did not mean that she would toss objective law out the window whenever a Latina woman walked into the courtroom. After all, in 1997 Sotomayor told Senator Jeff Sessions, “I do not believe we should bend the Constitution under any circumstance. It says what it says. We should do honor to it.”

And I’m guessing she didn’t mean she thinks that, all things being equal, Anglo-Saxon men make inferior judges. In the 2001 lecture, in fact, she said she believes “that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable.”

The point is, all things are never equal, and with a diversified set of justices, unconscious prejudices—whether on the part of white males, Latina females, black males, Jewish females, or anyone else—are inevitably held up to the light.

In “The Waves Minority Judges Always Make,” New York Times legal correspondent Adam Liptak quotes several studies showing that not only do female and African-American judges often rule differently from their white male colleagues, their very presence also affects the way their colleagues understand the issues at stake.

“Anyone who has ever sat on a bench with other judges knows that judges are supposed to influence each other, and they do,” Justice Souter wrote in a 1998 dissent in a death penalty case. “One may see something the others did not see, and then they all take another look.”

I agree with Washington Post pundit Michael Gerson’s contention that “a court should be a place where all are judged impartially, as individuals.” However, when he goes on to say that “the Obama/Sotomayor doctrine of empathy challenges this long-established belief,” he shows a serious misunderstanding of how impartial judgments are made.

Without empathy, writes conservative columnist David Brooks, people “are not objective decision makers. They are sociopaths.”

As Dan Kahan of Yale Law School has pointed out, many disputes come about because two judges look at the same situation and they have different perceptions about what the most consequential facts are. One judge, with one set of internal models, may look at a case and perceive that the humiliation suffered by a 13-year-old girl during a strip search in a school or airport is the most consequential fact of the case. Another judge, with another set of internal models, may perceive that the security of the school or airport is the most consequential fact. People elevate and savor facts that conform to their pre-existing sensitivities.

For Brooks, the crucial question is how empathy is used: “Sonia Sotomayor will be a good justice if she can empathize with the many types of people and actions involved in a case, but a bad justice if she can only empathize with one type, one ethnic group or one social class.”

Right on, Mr. Brooks. Similarly, a well-trained, widely empathetic doctor can treat many symptoms and both genders—and indeed, I have had excellent male doctors. Nevertheless, when almost all doctors were males, diseases that afflicted mainly females remained largely unstudied, while studies on equal-opportunity diseases often used only male subjects. Medical science may have been objective, but without the necessary empathy, the practice of medicine was not.

I am not saying you should be thrilled about Sonia Sotomayor. Honestly, I don’t know enough about her to say one way or the other. I’m just saying—if we want objective, impartial judgments that result in equal justice for all, we’d better not throw empathy out the window.