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Empathy and the Rule of Law

May 26, 2009
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President Obama’s decision today to nominate Judge Sonia Sotomayor to fill the vacancy on the Supreme Court of the United States created by the resignation of Justice David Souter has already sparked a debate among liberals and conservatives about the role of empathy in informing judicial reasoning.  Can a judge empathize with the litigants while still applying the law impartially to the facts of a case or does this inevitably lead to judicial activism?  I, for one, cast a vote for empathy.

Law and legal disputes arise from conflicting human values.  Facts usually have relatively little to do with the matter, and only have meaning within the context of the human values underlying disputes that make it to trial.

Conservatives and liberals alike agree that values and empathy play vital roles in the making of law.  They also agree that  executive functions and law enforcement activities should take account of factors beyond the letter of the law itself, although they often disagree about what considerations should influence these decisions and how they should affect the law’s application.  Why then the disagreement about the role of judges in taking account of such factors?

An intelligent, engaged, and impartial judiciary provides the ideal safeguard against ideological abuses of all kinds when empathy informs the rule of law.  Understanding and applying the law as an extension of human will, intellect, reason, and values makes us a stronger and more just nation.

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