Today the Senate confirmation hearings for Judge Sotomayer begin. It is my hope these hearings will be closely watched by the American public and that people (both Senators and citizens) will make their own evaluations of her suitability based on her legal skills, her judgment, her character, and their independent assessments rather than filtered through the predisposed media or their personal political preferences.
A few months ago President Obama expressed his desire for a Supreme Court justice with empathy. We first discovered his value of empathy as a virtue when as a senator he voted against the confirmation of Chief Justice Roberts by explaining that Roberts lacked empathy. Empathy is to suffer with or feeling the same feelings that the person who is suffering is feeling. It is to feel and appreciate what it is like to be in the other person’s shoes. It is not just an understanding of what they are feeling but feeling what they are feeling. Empatheia means in feeling, or physical affection, passion, partiality. It blurs the line between self and others. It’s feeling the emotional states of others or to be in tune with the other. Some research suggests that people are more able and willing to empathize with those most similar to themselves. It increases with similarities in culture and living conditions. We are more likely to empathize with those with whom we interact more frequently (Levenson and Reuf 1997 and Hoffman 2000: 62).  The empathizer’s own emotional background may affect or distort what emotions they perceive in others.
Empathy became popularized through the psychological efforts of the humanist psychologist Carl Rogers who taught that psychological healing often occurs in the inner being of the client through the emotional caring bond created by the empathic relationship with the counselor. This concept has been elevated in our culture to be a treasured virtue second only to tolerance in popularity. I recently read a fund-raising letter from a former student now in campus ministry who boasted of the desire to train students in empathy.
But empathy is not a virtue. Neither is it a vice. It is a feeling and virtues are not feelings. Virtues are ingrained character traits created by actions. They are objective while feelings are subjective. A virtuous person acts virtuously; she does not feel virtuous feelings. Virtues are things like wisdom, courage, temperance, charity, or compassion. These things are always acted out. To be courageous one must do courageous actions. This should be done regardless of the feelings one is experiencing. Love is a virtue and must be acted out. To reduce love to a mere feeling is to remove it from the realm of virtue. Justice is a virtue of action which must be done regardless of how one feels. One might feel empathy for a person being sentenced for a crime, but that feeling should not influence justice being done. A person might feel empathy for a child molester who was molested himself as a child but he should still be punished and be faced with impartial justice applying the rule of law.
Historically justice has best been understood as applying the law fairly or practicing the virtue of impartiality. That’s what it means to portray justice as blind. The law must be interpreted objectively not through subjective feelings. This is what we need in a judge; this is what we need in a Supreme Court Justice. Will Sotomayor practice impartiality? Will she be swayed by empathy? If so, this disqualifies her from the role of Supreme Court Justice.
Judge Sotomayor’s personal story is compelling and will be at the center of the hearings. But to let story become the basis of legal suitability is a postmodern phenomenon and threatens the idea of the rule of law and the value of impartiality.
Dr. Mark Hamilton is an Associate Professor of Philosophy at Ashland University and Board Chairman of the Institute for Principled Policy.