Pro & Con: Can empathy be a guide to selecting high court justices?

YES: All judges have empathy, or biases, and we better know what they are.

By E. Wycliffe Orr

Much has been said about President Obama's announced desire for judges with a "sense of compassion" and "empathy."

Many have inveighed against empathetic judges, preferring instead those committed to a supposed strictly dispassionate "rule of law." Others have supported the president's vision. But pro or con, most commentators have accepted as true the premise of two kinds of judges — those with and those without empathy.

Coming from nearly four decades in trial and appellate courtrooms throughout Georgia, as well as U.S. Army courtrooms in Germany, let me emphatically expose the fallacy of nonempathetic judges. It doesn't exist. The only question is, for whom and what are judges empathetic?

As the eminent Canadian physician-philosopher Sir William Osler told the Yale University graduating class in 1913, "every man has a philosophy of life in thought, word, or in deed, worked out in himself unconsciously." So do all judges have a judicial philosophy which inescapably guides their rulings. The only question is, for whom does that philosophy augur? With whom or what do their leanings lie? Judges do not shed their instincts when they don their robes. Like Martin Luther in 1521 in refusing to recant his religious views, judges "can do no other."

Those who have infrequent exposure to courts cannot fully appreciate how subjective court rulings really are. Hidden from most court decisions are the many depositions, transcripts, documents, briefs and other materials which make up a court file. All judges must choose what parts of the entire record, as well as what case precedents, to reference in their rulings. In short, judges recite that evidence and law which best supports the rulings they choose to reach. Their decisions are therefore a choice — not only in what to include, but in who wins and who loses — a very intuitive choice — a choice driven by a judge's empathies, whether they know it or not.

That is what is so laughable about those who proclaim that they want judges who will not "make" the law, but only "interpret" it. You cannot "interpret" law without "making" law. Judges must fill in the blanks, the unanswered questions left of necessity by all statutes and prior cases. That is why for many centuries, "the common law," the law as developed by countless cases over time has also been known as "judge-made law." Judges cannot avoid making law.

For all the palaver against judges allowing "personal feelings" to influence case outcomes, abstract commentary should not cloud reality. Cold-hearted, rigid judges are representative of totalitarian societies, not democracies. Our national credo includes not just pure "law," but justice as well — as in "equal justice under law," and our Georgia motto of "wisdom, justice, moderation." Blind adherence to supposedly unalterable "law" is not only impossible, it is utterly inconsistent with the "liberty and justice for all" to which we pledge allegiance along with our flag.

What professed opponents of compassionate judges really want is not judges devoid of personal feelings, but rather judges possessed of certain feelings — often feelings protective of government, institutions and privilege, as opposed to ordinary citizens whose only access to justice is through the courts. In reality, these calls for nonempathetic judges are the ultimate hypocrisy. Many of those issuing such calls don't really want strict judges. At least not all the time. They want a very selective empathy. Many of the politicians who have ridiculed the notion of "empathetic" judges have often urged light sentences for their friends — or themselves — who have run afoul of the law. Indeed, the presidential pardon itself is the most extreme form of empathy — a complete setting aside of the "rule of law" in favor of total empathetic exoneration.

Experience shows that there is no such thing as "pure law" — only malleable principles around which we organize our biases. And we better do our best to ascertain judicial nominees' real biases before they become judges, for those biases will dictate what freedoms, liberties and protections we enjoy.

E. Wycliffe Orr, a former state representative, is a Gainesville attorney and a member of the Georgia Public Defender Standards Council.

NO: Adherence to the rule of law cannot exist with 'feelings' about a case.

By Jeff Sessions

This week, the U.S. Senate is holding a confirmation hearing for Judge Sonia Sotomayor, President Barack Obama's nominee to the Supreme Court.

As the top Republican on the Senate Judiciary Committee, I have pledged that this hearing will be fair and respectful—but also thorough and rigorous.

If confirmed, Judge Sotomayor will have the power to define the meaning of our Constitution for the entire nation. This is an awesome responsibility — determining the rights and freedoms for every individual in America.

This is our one chance to get it right. Supreme Court justices do not face elections or term limits. It is essentially a lifetime appointment.

That's why we must have a national discussion about the role of a judge and what kind of justice we ought to place on our nation's highest court.

We must look to the Constitution, which has made our legal system the envy of the world.

While the courts of many countries run roughshod over people's rights, American courts are tightly bound to the words of the Constitution and must defend the rights of every single American — regardless of a judge's personal or political feelings in a case.

But President Obama and Judge Sotomayor have expressed a very different view of judging. This view says that justice should not be blind, that it should not be based only on the law and the Constitution, but that it should take a judge's own personal feelings into account.

President Obama says that when "constitutional text will not be directly on point," the critical ingredient for a judge is the "depth and breadth of one's empathy," as well as "their broader vision of what America should be."

But when a judge shows empathy toward one party in a courtroom, do they not show prejudice against the other?

Judge Sotomayor has stated her belief that judges "must not deny the differences resulting from experience and heritage but attempt ... continuously to judge when those opinions, sympathies and prejudices are appropriate."

But if you or I step into a courtroom, shouldn't we be able to do so with confidence that we will get a fair day in court no matter our background, experience or politics?

We should keep this in mind as we consider Judge Sotomayor's one-paragraph ruling in the recent New Haven Firefighter case.

Eighteen firefighters, one of whom suffers from a learning disability, studied for months to pass the city's promotion exam.

But the city junked the results because they didn't feel the outcome met the appropriate racial quota.

Sotomayor sided with the city and even denied the firefighters a trial.

The Supreme Court rejected Sotomayor's ruling and determined that the city's action to abandon the legitimate promotion process violated the legal rights of the firefighters.

For years, Judge Sotomayor was a leader at the Puerto Rican Legal Defense and Education Fund while it fought aggressively to pursue racial quotas for city hiring — just like in New Haven. Is Judge Sotomayor's ruling against the firefighters an example of her failure to set aside her biases and rule impartially?

Contrast the philosophy President Obama and Sotomayor have advocated with the plain words of the judicial oath:

"I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me under the Constitution and laws of the United States. So help me God."

Every day that Americans enjoy the extraordinary blessings of freedom, they do so in part because of the words and principles in that oath.

Empathy-based rulings, no matter how well-intentioned, do not help society, but imperil the legal system that has been so essential to our liberties and so fundamental to our way of life.

U.S. Sen. Jeff Sessions (R-Ala.), a former federal prosecutor, is the ranking member of the Senate Judiciary Committee.