When President Obama nominated Sonia Sotomayor to fill David Souter’s seat on the US Supreme Court, he ensured that opponents in the confirmation process will focus sharply on the President’s listing of “empathy” among the qualifications he sought and the related question of his nominee’s ability to apply the law fairly and impartially. Conservative activists and pundits have already been harping for weeks on the alleged problem of “empathy” and have consistently raised the fact that the traditional allegorical figure of “Lady Justice” wears a blindfold.
What they seem less eager to discuss, however, is the object “she” always holds in her hand and its particular condition. “Lady Justice,” of course, bears scales. Furthermore, “her” scales always appear perfectly balanced, neither side elevated over the other.
The most immediate symbolism of “her” scales, the significance that accords most easily with that of “her” blindfold, surely is “her” ability to avoid privileging either side in a dispute, her commitment to applying justice without being swayed improperly to one or the other. But this rather misses the point. When any judge renders a verdict, they very frequently imbalance their scales by deciding in favor of one side or another. The figure thus contains a fair amount of ambiguity. Considered another way, the balance of the scales represents the result of “her” adjudication. One of the functions of “Lady Justice” is to recognize imbalance, i.e. injustice and restore it to its appropriate condition. “She” must recognize that the positions of parties to a dispute do not have equally valid claims and/or positions, and render a judgment that creates a situation of fairness and justice. Empathy certainly is not sufficient for this process, but neither is it irrelevant.
One of the deep intellectual issues that divides liberals and conservatives concerns the question of anyone’s ability to apply principles without bias, to render judgment without prejudice. Conservatives claim a great deal of confidence in this ability and that they exercise it more consistently than liberals. Liberals, on the other hand, generally think that one cannot exclude the experiences and contexts that inform their perspectives so absolutely and consistently, nor should they. When such contexts exacerbate injustice, they may be pejoratively termed biases or prejudices; but when they provide perspective that aids the pursuit of justice, they are great assets in “her” cause. Conservatives are not just making a bad argument here, but an irresponsible and often opportunistic one whereby they cloak their interests in the rhetoric of impartiality. Any judge of any disposition will be able to name cases they decided where adherence to the law produced a clearly just outcome, as well as others where the inflexibility of a statute forced them to render a verdict they thought unjust. Yet many cases are not so clear cut. The fact that they can gesture to instances when the law functioned as an effective instrument of justice and others when it seemed to accomplish the opposite of its intended purpose demonstrates that the law is an imperfect instrument with no guarantee of just results. The law does not exist outside of its application, except as an academic abstraction. Accordingly, the conservative dogma that suggests judges should apply and not create the law draws a somewhat false distinction between the two. When judges apply laws they create precedents that have enormous implications for policies. The relationship between legislation and adjudication therefore features a great deal more fluidity than cliché conservative rhetoric admits. But neither can judges apply a law in ways that clearly contradict or nullify its text in the interest of establishing a just outcome. If they did, they would threaten the integrity of the law itself, their most powerful if imperfect tool for the pursuit of justice. Interpretive latitude is not unlimited. Legal prose and longstanding precedent restrict judges, but also ensure the stability of our legal system.
Another way of interpreting the figure of “Lady Justice” acknowledges the tension between “her” blindfold and “her” balanced scales. The former indeed signify the imperative of impartiality, but the latter represent instead the desired outcome: justice. Interpreting the balanced scales of “Lady Justice” as signifying justice relates the concept of justice to some notion of equity, or even equality. A conscientious judge who seeks to render verdicts that correct imbalances will find empathy a powerful tool, among others to be sure, in evaluating the subject positions of disputants. Empathy helps judges stand in their places and understand their relative positions within a shared social context. In many cases, when the law functions optimally, impartiality will facilitate justice. In others, empathy will not find expression under the law without undermining it altogether. But the cases in between require judges to engage this potential conflict. These are the cases where empathy counts most. These cases require active judicial creativity informed by responsible attention to legal precedent and the authority of the text of a given statute. They require self-consciousness with regard to a judges own subject position and experiential context, and a sincere desire both to judge fairly and to further the cause of fairness. In short, these cases require judges to pursue justice when it appears possible yet elusive.
The idea that only those empowered with crafting the texts of our laws may pursue justice, but those entrusted to apply it must ignore this pursuit appears absurd. It seems patently unwise and perhaps even dishonest to trust the text to produce justice on its own, as if judges can or should be passive and transparent conduits. On the other hand, this attitude may provide a surer way to protect the institutional integrity of the law, but at the potential cost of abandoning its effective purpose to chance. More often than not, their unexamined biases and motivations will affect their verdicts more severely than if they acknowledge them and attempt to determine where and when it is appropriate to either restrain or apply them.
An entire trajectory of intellectual and theological history underlies these debates. The assumption that impartiality as opposed to empathy guarantees a greater share of justice depends upon a mistaken opposition, one that played an important role in the Judeo-Christian tradition that conservatives love to cite, as if they are the sole reliable arbiters of its authentic parameters and guardians against its corruption. Behind the supposed opposition of impartiality and empathy lies an older one that pitted justice against mercy. This opposition occupied a central place in the Christian polemic against Judaism. It lines up with a host of others, such as vengeance/forgiveness and jealousy/love. The Jewish God was always positioned as the harsher more demanding figure, while generosity was embodied in his divine son. Of course, the historical narrative asserted by Christians who held perspectives that grew into what today we call supersessionism and replacement theology, reveal the perversity inherent in this polemic. For in Rabbinic Judaism, the precarious position of any individual or generation is balanced out by the perpetual assurances of covenantal permanence that promise the people’s inevitable redemption, restoration, and vindication. Only the Christian God of love historically cast out a beloved child. Hence other strains of Christian theology concentrate on Pauline doctrines that emphasize how God will ulti
mately call the Jews to salvation. Otherwise, they are caught in a perversity wherein their God of love and forgiveness appears infinitely more vengeful than he appears in the starkest passages in Hebrew scriptures. But these dichotomies also inform another thread in this polemic whereby literal Jews apprehend only the letter of the law, while spiritual Christians understand how the law functions as a figure that gestures toward its spirit. Oddly, the four most conservative justices on the court, Scalia, Thomas, Roberts, and Alito, devout Catholics all, are heroes to conservative constructivists, originalists, and textualists, who call for judges to apply the letter of the law strictly and impartially, without mercy, and who see empathy as a threat.
The history of this polemic that pits mercy and empathy against justice depends upon a misinterpretation of the Judeo component of the Judeo-Christian tradition. For Rabbinic Judaism does not oppose justice to mercy. Rather, it emphasizes that justice depends on a dialectical interaction between din, which refers to judgment not justice, and rahamim, meaning mercy. There is no question which is more important. The two most frequent terms that signify God in Hebrew are elohim, which refers to God as his actions are manifest in creation, God as the ruler of creation, and the four letter tetragrammaton YHWH, pronounced by scholars as Yahweh but by Jews only through its euphemistic replacement Adonai, meaning Lord. The latter is also the source of the name Jehovah. While elohim pertains to God’s actions and functions in creation, YHWH is understood as God’s proper name, that which signifies God’s eternal and perfect essence. There is no question which holds precedence. Elohim is associated with midat ha-din the attribute of divine judgment. YHWH is associated with midat ha-rahamim the attribute of divine mercy. Mercy thus holds hierarchical precedence over judgment. In fact, Rabbinic Judaism traditionally understands Satan as an anthropomorphic figure for midat ha-din, the attribute of judgment as distinguished from midat ha-rahamim, from mercy. Satan represents prosecutorial judgment, surely an important facet of divine action. But without its dialectical interaction with mercy, justice will appear monstrous. Classical midrash often opposes them in trial scenes. Satan prosecutes the Jewish people for their many sins, while the defense, offered by figures such as Abraham, Moses, and Rachel, appeals for mercy. The latter always ultimately win, but not conclusively. God as judge considers both the claims of the prosecution and the defense, of judgment and of mercy, in producing justice. He thus ensures redemption and forgiveness but upholds the people’s culpability by deferring their restoration and prolonging the people’s exile. If judgment were to win conclusively, the people would receive a death sentence: repudiation and annihilation. If mercy were to win conclusively, the messiah would be dispatched immediately, but then the culpability and responsibility that render human actions consequential would be nullified. In either case, justice would fail. These narratives uphold the dependence of justice on both judgment and mercy. The latter will ultimately win, but the former must also be satisfied.
When the traditional Christian polemic against Rabbinic Judaism pits mercy against justice, it both mistranslates terms and misinterprets their functions. In Rabbinic sources letter and spirit, judgment and mercy, play crucial roles in the structure of the legal justice. Proof of the perversity reached by the conservatives who pose as self-appointed heirs of the Judeo-Christian tradition, those who now call for strict application of the letter of the law and disdain empathy, can be found in the allegorical figure who most resembles the “Lady Justice” they so eagerly invoke. The only other allegorical female figure represented as blind in western tradition is named “Synagoga.” Paired with clear-sighted “Ecclesia,” an allegorical rendering of the Church, “Synagoga” represents the repudiated Jews whose literalism blinded them to apprehending Christ’s spirit.
When then Senator Obama opposed Chief Justice John Roberts’ confirmation, his decision to do so was guided by his “personal estimation that [Roberts] has far more often used his formidable skills on behalf of the strong in opposition to the weak.” This may indeed indicate that an aversion to empathy has impaired Roberts’ administration of justice. Or it may indicate that Roberts’ capacity for empathy functions all too partially in opposition to those disputants whose need for it is greater. What remains clear is that the scales in Justice Roberts’ hands are far less balanced than those in the hands of “Lady Justice,” and that his blindness perhaps bears less in common with her impartiality than with the literalistic blindness of “Synagoga” that led, in the Christian view, to her loss of godliness. If one of the central Christian imperatives is to strive toward imitatio Dei, the imitation of God, and imitatio Christi, the imitation of Christ, then mercy and empathy must play a role. Both are central to the Judeo-Christian tradition that conservatives claim to uphold. Both may nourish the secular tradition it helped engender. In the mean time, President Obama has nominated someone whose empathy he believes will guide her along with her intellectual engagement of legal text and precedent in the pursuit of justice, which is never accomplished but which must always be pursued.