Jeff Sessions: Empathy Towards One Litigant Means Bias Toward the Other Litigant?

Written by Robert Justin Lipkin on July 13th, 2009

Senator Minority lead Jeff Sessions made the astounding remark on Face the Nation Sunday that when a judge shows empathy toward one litigator, it means he or she will show bias toward the other litigant. What can this possibly mean? Showing or experiencing empathy means taking the appropriate action to experience oe0fbcabb6007999e.jpgr appreciate the circumstances, needs, and feelings of another person, especially when the other person is a member of group with which one is not terribly familiar. If I own a service station and have a conflict (or just want to understand) someone who breeds horses, empathy is the attempt to put myself in the breeder’s circumstances by asking the breeder questions relevant to our conflict. Empathy is the attempt to put myself in the other fellow’s shoes. If I’m a judge assigned to settle the conflict between the service station owner and the breeder empathy requires me to try to appreciate each party’s gripe as sympathetically as I can. As a judge empathy requires me to appreciate everything I can about each party relevant to the rules governing the legal conflict. Understood in this manner, empathy for one litigant cannot mean bias toward the other. Rather, it means appreciating each party’s circumstances and each party’s complaint.  I must try to appreciate why each party feels wronged and what is required to make them feel whole. Yet, according to Senator Sessions, empathy is inappropriate, perhaps even dangerous, because it’s a zero-sum game. If I genuinely empathize with one party, I must show bias toward the other party. It’s difficult to understand how a leading figure in the Senate can be so unaware of the role empathy plays in human conflict resolution. Just imagine a parent settling an argument between two children. Empathy doesn’t require favoring one child at the expense of the other. It means understanding each child’s complaint sympathetically and impartially and then fashioning a resolution that is fair to both children.


Comment by PG
2009-07-13 11:01:22

Thanks for noting this. I also was startled by Sessions’s comment. I think it’s a clear indication that Republicans still don’t understand what empathy means (i.e. they don’t even know the dictionary definition), and so they assume it means bias, prejudice, discrimination IN FAVOR of someone, which in litigation does inherently mean bias, prejudice discrimination AGAINST the other party.

Your example of the parent who should empathize with BOTH of his children is exactly what I was thinking when I read about Sessions’s comments. I hope someone raises that point to him, if necessary bringing out the dictionary to explain just how utterly the Republicans misunderstand the concept of empathy.

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Comment by Brandon Berg
2009-07-14 03:56:40

Taken literally, Sessions’ claim is correct: If you empathize with exactly one side, it biases you against the other. This is an important point to remember, because for most people it’s easier to empathsize with one side than with the other. For example, in a conflict between an individual and a corporation, juries often find it easier to empathize with the individual than with the shareholders of the corporation (especially with them not being present in the courtroom), with the result being a bias against the corporation.

Another example: leftists tend to empathize more with the recipients of government transfer payments than with the taxpayers who fund them. Now, it’s one thing to carefully deliberate the interests of each side and come to the conclusion that, on net, less harm is done overall by redistribution than by a more laissez-faire approach. What I actually see from most leftists, though, is either “Screw you, you don’t matter” or mockery of the idea that someone making $200,000 per year might be negatively impacted by having more than half his income confiscated by the government–in short, explicit refusal to empathize with one side. In cases like this, empathy is little more than a euphemism for bias. In fact, this seems to be the case more often than not.

I’m not intimately familiar with Sotomayor’s record, but I do think it’s important to ask whether her fabled empathy is something she’s in the habit of applying in an even-handed manner, or just rhetorical cover to rule in a way that advances a left-wing agenda.

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2009-07-14 12:51:00

Empathy means, or should mean, sensitivity to all litigants and all facts. To think empathy means just seeing one guy’s perspectives distorts the role of empathy in dispute resolution generally. The opposite of judicial empathy is bias–selectively restricting oneself to one side of the argument–not objectivity. Indeed, the opposite of empathy is subjectivity and relativism, not objectivity.

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Comment by Tim Fowler
2009-07-14 17:57:48

Empathy, isn’t just sensitivity, it means feeling what someone else feels. If you feel what someone else feels in a way that’s relevant to a case your presiding over, your likely to be biased.

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2009-07-15 14:12:59

The conclusion simply doesn’t follow and more important it distorts judging. I may feel the pain of firing someone or disciplining my child and yet, if I’m honest and fair, I might carry through with the firing or disciplining anyway. Anyone who can’t do this shouldn’t be a judge. Moreover, any decision-maker regarding the complex interests and conflicts of several people should be able to feel the loser’s pain and ratify the loss nonetheless. This is simply a feature of practical reasoning about the interests of other people. The conflation of empathy for X and judging in favor of X simply on the grounds of empathy is fundamentally fallacious and dangerous. Empathy–feeling someone else’s pain–helps a judge see a relevant fact of the situation that the non-empathetic judgment does not see. It serves the cardinal principle of practical reasoning: know all the facts. It in no way dictates a result when other overriding factors exist.

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Comment by Tim Fowler
2009-07-21 15:37:24

Either the empathy effects the judgment or it does not. If it does not, then there isn’t much reason for it to be considered a useful or important qualification for being a judge. If it does, then empathy for X does make you more likely to judge in favor of X.

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2009-07-21 17:26:43

Empathy affects judgment in the way perception affects judgment. It alerts the decision-maker to a fact he or she might not have seen without the empathy. Sure facts affect judgment, but that’s precisely the point. A sophisticated decision-maker wants all the relevant facts he or she can gather or perceive. Perceiving a fact doesn’t bias a judgment; it provides the data upon which the judgment is based.

Comment by Tim Fowler
2009-07-23 18:42:47

Empathy isn’t just perceiving what someone else feels, its

“the action of understanding, being aware of, being sensitive to, and vicariously experiencing the feelings, thoughts, and experience of another of either the past or present without having the feelings, thoughts, and experience fully communicated in an objectively explicit manner”

Note the experiencing part (and that its combined to the rest with an “and” not an “or”). If your experiencing the thoughts and/or feelings of one side in the case, your not just perceiving relevant facts. To the extent your truly experiencing empathy your are not being totally objective.

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2009-07-23 19:15:11

“To the extent your truly experiencing empathy your are not being totally objective.” This is simply a non sequitur. If all you’re experiencing is empathy for Jones you are not being totally objective, whatever that means anyway. But if empathy for Jones–experiencing Jones’ feelings–is one of the factors you’re taking into account in your judgment along with other factors–empathetic or not–then by doing so you’re coming closer to objectivity than if you eschew empathy.

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Comment by Tim Fowler
2009-07-24 13:45:00

If your decision is in any way based off feeling the same emotions as one side in the case your simply not being objective, not non-sequitur about that its just facing reality.

If OTOH by “empathy” you mean something like “understands how the people involved feel” (which I think is what a lot of people mean, even though its doesn’t fit with the dictionary definition I gave in my last comment), than such “empathy” can be a matter of understanding at least slightly or potentially relevant facts.

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2009-07-24 14:23:13

Again, I think this is a non sequitur: “If your decision is in any way based off feeling the same emotions as one side in the case your simply not being objective, not non-sequitur about that its just facing reality.” First, I can simultaneously feel the same emotions of both sides in a case. That’s one element in what we ordinarily consider a wise decision process. It seems your definition of empathy suggests if I feel someone’s emotions I am somehow swept up by those emotions and unable to appreciate the emotions of others involved. That’s not an interesting conception of empathy. ‘Facing reality” distorts understanding of complex human intellection and empathy. It is not rich enough to settle the issue. The law is replete with empathizing with multiple parties so are many examples of dispute resolution.

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Comment by Tim Fowler
2009-07-24 18:08:40

I don’t think its reasonably possible to simultaneously feel the same emotions as both sides of the case (unless their feeling the same thing). I’m just about certain it isn’t possible to regularly or reliably do so.

In terms of judges and judicial rulings, what gets praised or attacked as empathy often doesn’t fit the dictionary definition of empathy. For example in the case about the teenage girl (now an adult woman) who had been stripped searched at school, I very much doubt Ginsburg or any of the other justices, actually felt what that girl felt. I think rather she (perhaps) understood what the girl felt, and felt sympathy for the girl and her feelings, but understanding of, and sympathy for someone emotions isn’t the same as actually feeling/experiencing those emotions. True empathy isn’t very common, sympathy and/or understanding is much more likely.

Understanding of the emotions can be useful, and doesn’t seem likely to have much downside. Sympathy could be useful, but could be a source of bias. True empathy would be very likely to be a source of bias, and doesn’t seem like something that would be necessary or clearly useful in many judicial cases.


As for my statements being a non-sequitur, well you seem to be making arguments that they are false. I disagree with that, but even if they are that wouldn’t make them non-sequiturs. You disagree with the truth of my premise, but a false premise doesn’t make for a non-sequitur. In different uses a non-sequitur can mean a conclusion that doesn’t logically follow from the premises in a formal argument, or it can refer to in which premise and conclusion are totally unrelated but which is used as if they were, or it can refer to a answer or reply that has no connection at all to the question or statement its replying to. Even if we assume that my statement is totally wrong, it wouldn’t fit any of those definitions of non-sequitur, it would just be a false statement used as a premise in an argument.

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Comment by Robert Justin Lipkin
2009-07-24 20:18:17

Three final points: First, a non sequitur is an “argument” where even if the premise is true, the conclusion doesn’t follow. It has nothing to do with the independent truth of either the premise or the conclusion. To say (1) feeling someone else’s feelings precludes (2) judging against that person is a non sequitur because (2) simply does not follow from (1). An additional premise is required.

Second, I’m not at all sure what you’re packing into the notion of “the same emotions as both sides of the case.” If my daughter breaks my son’s I-Phone because he refused to permit her to borrow it, I can empathize–experience her feeling of being short-changed–while simultaneously experiencing my son’s feeling that his I-Phone is his and he need not share it with his sister. I can simultaneously experience both their feelings, and therefore can empathize with both kids. It seems on your view empathy is a raw emotion that if you experience no other emotions contrary to it can be felt. I don’t think that’s a useful conception of empathy, some dictionary definition notwithstanding. Sympathy is a weaker attitude. Third, I can sympathize with someone without empathizing with that person. The bottom line, in my view, in judicial cases, is that judges should be able to experience the litigants emotional experiences and perspectives as a precursor to seeing/expereincing the world from that person’s shoes.

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