Posted by Orin Kerr:
Obama's Statements on Empathy and the Doctrinally Relevant vs. Doctrinally
Irrelevant Distinction:
http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243621824
There has to be a natural limit on how many posts on empathy a single
blog can host -- or at least I hope so -- but I wanted to elaborate on
an interesting issue raised in the comment threads on the difference
between what I have called "doctrinally relevant empathy" and
"doctrinally irrelevant empathy." A number of readers claim that
President Obama is referring to empathy only in the doctrinally
relevant sense. According to this view, all Obama is saying is that he
thinks judges should have a worldiness and understanding that allows
them to apply legal doctrine accurately. Everyone really agrees with
that point, the thinking goes, as doctrinally relevant empathy is not
controversial. As a result, the entire debate over empathy is
basically bogus, just a right-wing straw man.
I wanted to focus the discussion a bit by pointing to what I take to
be the two key descriptions of empathy that have led Obama's critics
to believe that he is referring to something other than doctrinally
relevant empathy. The first was what I believe is Obama's first
extended discussion of the point, when [1]he announced his vote
against John Roberts in 2005. As he expressed it then, Obama spoke of
empathy as the quality that kicks in when doctrine runs out:
[W]hile adherence to legal precedent and rules of statutory or
constitutional construction will dispose of 95 percent of the cases
that come before a court, . . . what matters on the Supreme Court
is those 5 percent of cases that are truly difficult. In those
cases, adherence to precedent and rules of construction and
interpretation will only get you through the 25th mile of the
marathon. That last mile can only be determined on the basis of
one's deepest values, one's core concerns, one's broader
perspectives on how the world works, and the depth and breadth of
one's empathy.
In those 5 percent of hard cases, the constitutional text will
not be directly on point. The language of the statute will not be
perfectly clear. Legal process alone will not lead you to a rule of
decision. . . . in those difficult cases, the critical ingredient
is supplied by what is in the judge's heart.
It seems to me that Obama is not merely speaking of doctrinally
relevant empathy here. He's not making a formalist claim that an
accurate application of the law requires empathy to reach correct
results. He seems to be speaking of empathy as something outside
doctrine -- a quality that kicks in and can guide decisionmaking after
doctrine has been exhausted and has not yielded an answer.
That point is echoed in his definition of empathy when he
[2]announced Justice Souter's retirement a few weeks ago: he described
empathy as the quality of "understanding and identifying with people's
hopes and struggles as an essential ingredient for arriving as just
decisions and outcomes." This doesn't sound to me like he is
referrfing to legally relevant empathy; I think it is at the very
least nonobvious that arriving at a "just outcome" through identifying
with a person's "hopes" is doctrinally relevant.
Anyway, I don't think the meaning of "empathy" is really such a
vital issue. Like the John Roberts baseball analogy, it seems like a
phrase that captures the public attention for its (superficial)
simplicity rather than the depth of its insight. But I did want to
point out the passages that have led critics to focus on the issue.
While of course different people can look at language and reach
different conclusions, I think there is indeed some basis for
thinking, just based on President Obama's words, that Obama has
something else in mind.
References
1.
http://obamaspeeches.com/031-Confirmation-of-Judge-John-Roberts-Obama-Speech.htm
2.
http://www.whitehouse.gov/blog/09/05/01/The-Presidents-Remarks-on-Justice-Souter/
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