President Obama has repeatedly stated that he views a capacity for empathy as an essential attribute of a good judge. And conservatives have heaped mountains of scorn upon him for saying so—accusing him of expressing open contempt for the rule of law. This Article seeks to offer a sustained scholarly defense of judicial empathy. Empathy is properly defined as the cognitive ability to understand a situation from the perspective of other people, combined with the emotional capacity to comprehend and feel those people’s emotions in that situation.

This is an essential characteristic of a good judge. Legal doctrine, at both the constitutional and subconstitutional level, is permeated with reasonableness and balancing tests and other doctrinal mechanisms that cannot possibly be employed effectively unless judges are able to gain an empathic appreciation of the case from the perspective of all of the litigants. A judge can neither craft nor employ legal doctrine competently if she is not willing and able to understand the perspectives of, and the burdens upon, all of the parties.

by Thomas B. Colby

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