Who the judge is matters — but not always the way people think

A great judge is the sum of many parts: intelligence, commitment to the rule of law, experience, temperament, ability to work well with others, persuasiveness. Add to those qualities the ability to empathically understand others.

In nominating D.C. federal Circuit Court Judge Ketanji Brown Jackson to the Supreme Court, President Biden emphasized some of these qualities. He praised her intelligence, legal skill and experience, along with her representational qualities. “For too long,” the president said, “our government, our courts, haven’t looked like America.” She is the first Black woman ever nominated to serve on the high court.

Many Americans are likely to hear that statement only in terms of the partisan or identity politics that have recently dominated our civic debate. They may think that a Justice Jackson will be just another politician in robes.

But Jackson’s nomination is about much more than race or political affiliation.

If she is confirmed, Judge Jackson promises to add to the store of knowledge, experience and perspective on which the Court collectively depends.

During her Senate confirmation hearings last April for the D.C. Circuit Court of Appeals, Sen. John Cornyn (R-Texas) asked Jackson a question he would never ask a White nominee: “What role does race play … in the kind of judge you have been and the kind of judge you will be?”

Jackson did not take the bait. She properly answered that race would be inappropriate to consider in her decision-making. She continued by quoting Oliver Wendell Holmes: “The life of the law has not been logic. It has been experience.’”

Then she added, “I’ve experienced life in perhaps a different way than some of my colleagues and that … I hope … might be valuable on the [court].”

That difference in life experience matters and will enhance the Court’s perspective and its empathy, making Judge Jackson a valuable addition to the country’s most important legal institution.

In May 2009, days before nominating Judge Sonia Sotomayor to the high court, President Barack Obama described empathy as the quality of understanding “people’s hopes and struggles,” and he correctly called it “an essential ingredient for arriving at just decisions and outcomes.”

In common parlance, empathy means putting yourself in someone else’s shoes. Psychologists sometimes label it “empathic accuracy” or “perspective taking.”

Need a recent example of why that matters?

In late January, U.S. District Judge Lisa G. Wood heard and understood the outcry from Ahmaud Arbery’s family and rejected a plea deal for his killers. She had no legal obligation to do so, and it is unusual for a judge to reject a Justice Department plea recommendation. Yet, the result of her empathetic decision was a conviction that civil rights leaders hailed as a real advancement in racial justice.

The need for empathetic decision-making in the Supreme Court is equally, if not more, important. As Berkeley Law School Dean Erwin Chemerinsky has written, “Judging, especially at the level of the Supreme Court, is not and never has been a mechanical process of applying clear rules to yield determinate answers. It is a human activity in which there is often great discretion … In exercising this discretion, justices should be mindful of the consequences of their decisions on people’s lives. That is what empathy is about.”

No one ever knows for sure the source of the ability to put oneself in others’ shoes, but research tells us that females tend, in general, to score higher in empathy than males. It also shows that “[e]mpathy is something we develop over time and in relationship to our social environment.”

In one telling study, researchers found that male judges with daughters tended to sign onto rulings favoring women more often than justices without daughters, even more so if the judges were Republicans. Those judges had greater ability to see things from a woman’s perspective and credit their claims.

Psychologists and neuroscientists inform us that a converse principle is also true: Lacking empathy for someone will likely increase the willingness to cause them harm, especially if they are from a different racial group.

Here is where diversity of experience and viewpoints comes into play on courts like the Supreme Court. As law professor Susan Bandes has explained, “[J]udges routinely exercise empathy for particular groups, finding some perspectives more accessible than others. This sort of selective empathy can be ameliorated … by aiming for a Court with a range of backgrounds and life experiences. Supreme Court justices, like the rest of us, make better decisions in an atmosphere of lively debate than in an echo chamber.”

That describes well the importance of diverse life experience in the Court’s conferences, where differing views about cases are batted back and forth.

Judge Jackson has had different experiences from every other current justice — in her family life and in representing criminal defendants without means.

As the New York Times reports, she “has deep roots in thinking about criminal law from multiple perspectives. One of her uncles was sentenced to life in prison on cocaine charges. But another was Miami’s chief of police, a third uncle was a sex crimes detective, and her brother worked as a police officer in Baltimore.”

Thinking from multiple perspectives is a sterling judicial virtue.

When President Obama proposed empathy as an important selection criterion in 2009, Republicans opposed it by suggesting that empathy was antithetical to the impartiality that we seek in judges.

That dichotomy is a false one. As law professor Rebecca K. Lee has argued, “[E]mpathetic judging is necessary for objective adjudication.” She reasons that “to truly engage in even-handed and thorough decision making,” judges must get past their own biases in order to “fully comprehend the situation of each of the litigants in the dispute and all that is at stake.”

Empathy helps ensure full consideration of a litigant’s situation, but it does not guarantee a favorable result. Professor Lee points out that it “is not a matter of the heart simply leading the mind, but rather a matter of using one’s full faculties — emotional and mental — to comprehend and resolve a difficult situation.”

At Justice Samuel Alito’s confirmation hearing in 2006, he testified about the role of empathy in his own judging: “When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender, and I do take that into account.”

That is in keeping with research showing that prior experience of emotional pain or loss is what most strongly affects people’s ability to take in others’ perspectives.

Judge Jackson has said that in school, she “was often the only person of color in [her] class, club, or social environment.” The experience of being different, feeling alone or not belonging equips her to put herself in the place of litigants whose cases involve any form of exclusion, including cases involving discrimination based on religion, gender, sexual orientation or race.

In other words, in the life of the law, experience shapes empathy and widens perspective. Justice Ketanji Brown Jackson will expand the Court’s access to them.

Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not represent Amherst College.

Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy.