Goodwin Liu’s nomination by Barrack Obama to the US Court of Appeals for the Ninth Circuit went down to defeat last week despite the fact that he had the majority’s support (52-43) in the Senate. Sixty votes were needed to overcome the Republican filibuster. This was the first time Republicans had succeeded in filibustering a judicial nomination.
The major stated Republican objection to Liu is that they didn’t like his judicial philosophy, which they said adopted a standard of empathy that encouraged judges to view cases through the eyes of those before them instead of applying a strict reading of the law. The real reason may have been something else entirely: Liu was a sharp critic of the Supreme Court nominations of John Roberts and Samuel Alito, accusing them, in flamboyant (some say “inflammatory”) language, of using the bench to further political and economic conservative causes. Additionally, Liu has published articles favoring abortion, affirmative action and same-sex marriage, positions anathema to reigning Republicans.
Whatever the real reason, the role that empathy should play in judicial decisions is an important one. Certainly the law should be guided by facts, not feelings and that reason should prevail over emotion. The law is mean to be dispassionate.
But that only describes part of the process. I am reminded of the first time I was on a tenure committee at Hofstra. I asked a senior colleague what criteria we were to use in making a recommendation to the dean. He said, “Let the numbers speak for themselves.” Yet when it came time to make a decision, the numbers needed interpretation. What weight do you put on teacher evaluations from general freshmen courses as compared to those taught in her major field? Are all publications to be counted the same, regardless of the number of pages and the particular publication? If numbers spoke for themselves, the evaluation could have been down by a computer. Instead, there were many discussions that turned on what to make of the data.
I face a similar dilemma when assigning final grades. I inevitably find myself needing to use some discretion. I can develop all the rubrics I want about how I assign grades but there is no getting around needing to use my judgment at least several times a semester. Do I bump up a grade a little because a student is shy and didn’t speak up in class or ill or had trouble getting work in on time because their parents were getting divorced? How much slack do I give because a student works five days a week or has an old computer that often freezes?
One colleague was faced with a student who was three credits short of graduating and already had a job waiting that would be endangered without a degree in hand. (You can hear Professor Warren M’s decision by listening to Ethics Project recording #19.)
An even more subtle factor in allocating grades is the implicit bias that each one of us carries around. This is the inclination to give the benefit of the doubt to those with whom we identify and to be skeptical of those with whom we share little.
There is no such thing as a purely objective grade. Numbers don’t speak for themselves. Someone must give them a voice in the real world. The same can be said about the law—its value is the way in which it is translated into the social world.
As a teacher, I use my judgment in allocating grades. And judges must use their judgment in deciding the law. Those who sit on the bench are called “judges,” after all, not “algorithms.”
Mid-20th century Supreme Court Justice Benjamin Cardozo said, “If you ask how [a judge] is to know when one interest outweighs another, I can only answer that he must get his knowledge just as the legislator gets it, from experience and study and reflection; in brief from life itself.”
Experience, study and reflection are a large part of what we mean by wisdom. Behind it all, though, is empathy, the capacity to identify with another person, the ability to know the world through another’s eyes. This is what sets humans apart from computers.
Judges’ decisions must be rooted in the Constitution. They can’t simply make up the law as they see fit. But the law requires an interpreter. It is essential for a judge to have a sense of empathy in order for the law to serve its ultimate purpose, to further human dignity.
The law—a just law—is rooted in ethics and the impetus for ethics is empathy. Without empathy the law is merely a tool for the strong to rationalize their position, not an instrument for social justice in the service of all.