It's always an interesting time when a president nominates a Supreme Court Justice. Maybe that's why I followed the three previous nomination processes that have happened in the few years that I've been writing this blog. I've already said my piece about impartiality, and don't wish to retread ground too deeply. Even so, with new comments making the rounds about the value of "empathy" (or, more properly, how President Obama seems to be avoiding the word, if not the concept, on this go-around), which I touched upon very quickly last time, it seems important to reflect on this issue as it relates to Christian virtue.
Now, of course, in a secular country, it's not entirely appropriate that a Supreme Court Justice be chosen on the basis of "Christian virtue," but I expect that few people would argue that such virtues (being virtues, after all) are a bad thing for a Justice to have. Certainly, for those of us who are Christians ourselves, I think it's safe to say we want Justices in place who will respect such virtues.
But, is "empathy" a virtue that we should value in a Supreme Court Justice? Consider, for example, this quote from a one-time adviser to former President George W. Bush named Ed Gillespie, who helped with at least one of Bush's Supreme Court nominations: "Empathy’s a great trait in a drinking buddy, but not so much a Supreme Court justice."
Likewise, this quote from constitutional scholar Lee Epstein: “You hear ‘empathy’ and you don’t think impartiality, judicial temperament." If being empathetic means that a Justice wouldn't be as good at their job (specifically, the job of determining the impartial application of the United States Constitution in difficult cases), then perhaps it is something we can do without. Perhaps empathy isn't really a virtue at all!
On the other hand, here's a quote from law professor Pamela Karlan: "...the real issue is that many people do not understand the difference between empathy and sympathy. Empathy means being able to imagine oneself in the condition or predicament of another, while sympathy means sharing the feelings of another to the point of compassion or pity." Perhaps a lot of this controversy is simply because people don't all agree as to what we're talking about in the first place?
It seems to me that, in order to be fair to those who seek justice, one must be "able to imagine oneself in the condition or predicament of another." This doesn't mean that a person who is on the wrong side of the law should get better treatment than the law demands. But it does mean that one can imagine how less-than-clear laws (and, let's face it, if the laws were clear, the cases wouldn't be getting to the Supreme Court, but would have been decided at a lower level) might apply to people in various circumstances (Richard Beck of Abilene Christian University articulates this better than I could ever hope to). It is, in fact, the very opposite of imposing one's prejudices on a situation.
But let's go back to the idea of empathy as a Christian virtue. Indeed, Beck (among others) considers empathy the greatest virtue! Christians are fond of citing what we call "The Golden Rule." Jesus teaches us to "do to others what (we) would have them do to (us)." Doesn't obedience to this command require empathy? And what if Beck's right, that empathy is the virtue that is "at the foundation of moral practice"? What does it say about us if, as Christians, we advocate against empathy? If we're really serious that we want our government to reflect the principles of the people who live in it, and we believe that, as Christians, we have as much right to advocate for our beliefs as anyone else should, don't we want our leaders (including our lawmakers and those who administer the laws) to reflect the virtues that are at the core of who we say we're supposed to be?