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10. Systems and Feelings
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289 10 SYSTEMS AND FEELINGS KEN I. KERSCH Robin West’s “The Anti-Empathic Turn”1 is an unusually provocative and important reflection. Its central claim is that, in deciding cases, today’s judges are increasingly pressed—educated/trained/ inclined—to think of themselves not as doing justice between the parties before them but, rather, as resolving the dispute to produce rules that fit as neatly as possible into a broader regulatory system. As such, judging (once a moral exercise, centered on the parties to the lawsuit, who were truly seen) is now largely an occasion for the engineering and maintenance of a larger and impersonal administrative and regulatory system (in which the parties —once complicated, individualized human beings—are now mere illustrations/cases in point/vehicles that simply prompt). West laments this development and (implicitly, if not expressly) calls for a return to the increasingly lost tradition of moral, party-centered, “empathetic” judging. In this brief comment, I agree with West’s central claim regarding a regime change in the nature of the judicial role. But I question her account of the decline of “empathy”—including her illustrative use of Judge J. Skelly Wright’s canonical opinion in Williams v. Walker-Thomas Furniture Co.2 I argue that the changes she acutely observes are so deeply implicated in the nature of the modern social welfare state that, even if it were possible to reverse them and revive an earlier “lifeworld” (which is doubtful), to do so would be extremely radical (not to mention, potentially, highly reactionary).3 290 Ken I. Kersch 1. What Are We Talking about When We Talk about Empathy? West is very good about surveying the array of actual and possible criticisms of the use of the term “empathy” in recent scholarship and political debate concerning its proper role in law and judging. But, despite the fact that she anticipates some of my own objections and attempts to meet them, I remain unpersuaded by her arguments and continue to hold those objections nevertheless. First, I don’t understand what the term “empathy” really means in this discussion. It needs to be clarified. At one point, West defines it as “the ability to understand not just the situation but also the perspective of litigants on warring sides of a lawsuit.”4 She adds that “[o]ne simply cannot judge another before walking in his shoes. Indeed, to suggest otherwise might be thought to be disqualifying ” for a judge.5 Indeed, in law, the lingua franca of analogical reasoning “by definition seemingly requires empathetic understanding.”6 If by empathy West simply means the capacity of the judge to have a rich understanding of the nature of the situation of both litigants—imagination as a route to full information7 —then I don’t think anyone (including those she would take to be partisans of “anti-empathic” judging) is opposed to it. If empathy means a rich ability to inhabit the situation, no one, even today, is against it. Who would deny that better judges understand more, not less? In light of this, might West be better off claiming that, today, judges are either (1) less interested in understanding the full facts surrounding the legal disputes they are charged with resolving, including the “personal” facts speaking to the “state of mind” of a party, which often remain legally relevant, or (2) less perceptive in apprehending those facts? Put otherwise, might she be better off framing the question as involving a reduced level of curiosity or insight among contemporary judges? West cites the recent public/political debates in which the model of the empathetic judge took a major beating—including the attack on President Obama for indicating during his campaign a desire to appoint empathic judges to the bench, the attack on one of his Supreme Court nominees, Sonia Sotomayor, on the grounds (in light of earlier statements she had made) that she might herself be one of those empathetic judges, and Chief Justice [3.238.87.31] Project MUSE (2024-03-28 22:17 GMT) Systems and Feelings 291 John Roberts’s insistence in the opening statement of his confirmation hearing that it is the job of the judge to act as a dispassionate umpire calling balls and strikes. The charge in these political dust-ups was that empathy in judging is contrary to the rule of law. West raises the possibility that the attack on empathy in judging by conservatives—although phrased in general terms—may have been, in...