The Sotomayor Hearings: When Did Empathy Become a Dirty Word?

by Neena Chaudhry, Senior Counsel,
National Women’s Law Center

This post is part of a series about the nomination of Judge Sotomayor for the Supreme Court.

As Senators made opening statements on the first day of the Supreme Court confirmation hearings for Judge Sotomayor, several referenced the now controversial “e” word—empathy.  This word became a focal point when President Obama mentioned it as one of the many qualities he is looking for in a Supreme Court Justice, and it is now being misused in an attempt to paint Judge Sotomayor as someone who will not be impartial but rather will make decisions based on personal biases.  Unfortunately, the President’s statement and the definition of the word empathy have both been distorted in the name of politics.  It is reminiscent of the telephone game that many of us played as kids, where the initial sentence or phrase was warped after repeated whisperings of it from one person to another. 

Since we’re talking about a Supreme Court nomination, it seems fitting to start with the facts.  Here is what President Obama actually said: “I will seek somebody with a sharp and independent mind and a record of excellence and integrity.  I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book.  It is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation. . . . I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving a[t] just decisions and outcomes.  I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role.  I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.” 

Now compare the President’s words to what we heard today from certain Senators.  According to Senator Kyl (R-AZ), President Obama has wrongly decided that it is “time for a new kind of judge; one who will apply a different standard of judging, including employment of his or her empathy for one of the parties to the dispute.”  Senator Coburn (R-OK) did not like “President Obama's stated intent to nominate someone who is not impartial, but instead favors certain groups of people.”  And Senator Grassley (R-IA) was troubled that “President Obama said that he would nominate judges based on their ability to empathize in general and with certain groups in particular.” None of these statements bears any resemblance to President Obama’s quote above, which highlighted empathy as one of the many qualities that he would like in a Supreme Court Justice, along with respect for the judicial process and appropriate limits of the judicial role.  And the Senators’ claims that President Obama seeks a Justice who favors certain groups of people have no basis whatsoever. 

That brings us to the definition of the word empathy, which is essentially the ability to put yourself in someone else’s shoes.  It is not, as Senator Sessions (R-AL) posited, the same as sympathy (a tendency to favor or support) or prejudice (a preconceived judgment or opinion).  Contrary to the latter definitions, therefore, empathy and justice are not mutually exclusive, but rather mutually reinforcing.  In any given case, judges make decisions that affect an individual’s most basic rights – life, liberty, property.  If you were before a court, wouldn’t you want a judge to try to put himself or herself in your shoes before rendering a decision that affects some fundamental aspect of your life? 

As the hearings continue, we’ll have to see if empathy gets its day in court.  For the sake of justice, I hope so.