On Empathy

I may or may not have posted this as a comment over at Essentially Contested America in response to this post:

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?

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 empathize 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 me 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.

Update: Constant has more here.

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It is code

I've moved this comment here.

Judicial empathy

I have a post on judicial empathy here.

I'm confused - the quote

I'm confused - the quote seems to be saying, paradoxically, that if a judge shows empathy for one litigant, his ruling tends to show bias toward the other litigant. Is the bias toward or against the other litigant?