Has everyone stopped caring about empathy?

Another comment on empathy came last month from Supreme Court Justice Anthony M. Kennedy (an appointee of Ronald Reagan), in an address to the Palm Beach County Bar Association and the Forum Club of the Palm Beaches. In choosing a judicial nominee, he said, rather than trying "to figure out how the judge would rule on a specific question ... what you should ask is whether the judge has the temperament, the commitment, the character, the learning to assume those responsibilities."

In response to a question from the audience, Kennedy rejected the idea that empathy has no place in court decisions. "If lack of empathy means you close your eyes to the law's decree, that's just silly." He stressed that principles can't be formulated "without being aware of where those principles will take you, what their consequences will be."

Kennedy asked rhetorically whether a judge is not supposed to know about "capital defendants in a single, windowless, 12-by-8 cell for 20 years, waiting for their sentence." He said, "Law is a human exercise, and if it ceases to be that, it does not deserve the name law."

The mind of a lawyer

Having spent a half-century trying cases and a few years teaching the subject, I'm surprised that the debate over empathy is so focused on judges' understanding of the parties in cases before them. The value of empathy in the practice of law goes well beyond that.

Notably absent from the public discussion is the essential role empathy plays in judges' ability to understand the large class of people whom they constantly deal with.

Whether they sit on lower courts trying cases or higher courts hearing appeals, judges deal with lawyers who are trying to persuade them to make the decisions their clients want. In the real world of litigation, the empathetic ability of a judge to get inside lawyers' minds and understand their thinking can be an invaluable skill in the search for the legal truth at the heart of every just decision.

For trial lawyers given to extravagant advocacy, it's hard to imagine a more sobering thought than a judiciary skilled at empathizing with them.

Seymour I. "Spence" Toll has been a Philadelphia trial lawyer and law schoolteacher. He is the author of "A Judge Uncommon: A Life of John Biggs Jr." He can be reached at spentoll@aol.com.