Empathy in Judging and Leading

Judging is not the same as leading. They are different roles and require different sets of skills. So it has been interesting to watch the use of the word "empathy" connecting to the work of judging.

President Obama declared that empathy would be an "essential ingredient" in his choice of a successor to the retiring, in both senses of the word Supreme Court Justice David Souter. And from everything we know, his selection of Judge Sonia Sotomayor honors that commitment.

But how empathetic do we want our Supreme Court Justices to be?

Not very, is my answer, even though, as Carlos Watson has pointed out in his new blog The Stimulist, Sotomayor might be the most qualified judge ever nominated for the Court.

A little more empathy on the Court might be a good thing. David Brooks tried to thread the needle on this question in a complex column in the Times at the end of May.

The danger is that empathy easily turns into sympathy and the difference between the two is crucial. Empathetic people are able to put themselves in other people's shoes. Sympathetic people are reflexively supportive of people in pain. Sotomayor's membership in the National Council of La Raza, an important and respected Hispanic rights advocacy group, while she was on the appellate court, is evidence that she has crossed that line.

The United States has always been mostly a club for white males, the dominant and, for most of US history, the majoritarian faction in the country. The rules and norms and, yes, the laws understandably have reflected that culture. So it is a challenge for the Supreme Court to apply abstract Constitutional principles to specific laws and cases, when those cases are about the impact on people from minority factions.

The Justices, however well-intentioned they may be, cannot easily ascertain the constitutionality of those laws for people whose life experiences they do not understand. The best example of this, of course, is abortion. It is difficult to decide whether a right to privacy should apply when you have never carried a fetus and cannot remember when you were one. Having had the experience of being pregnant, or being empathetic to it, does not argue for or against the decision in Roe v. Wade, but is relevant to whether you think the principles embedded in the Constitution should be understood to protect the decision of the woman or the rights of the fetus.

Look at it this way. Sympathy is on one end of a continuum and cold-bloodedness is on the other and empathy is somewhere in the middle. We should want our judges to be more toward the cold-blooded end and our legislators to be more toward the sympathetic end, but a little bit of empathy can help them understand the impact of their decisions on people and circumstances with which they cannot identify.

But if too much empathy is dangerous in judges, empathy is a quality that is critical in exercising leadership.

What Obama has shown, most recently in his Cairo speech, is his unusual capacity for empathy, for knowing how others feel, for deeply understand how the world looks to them, even and especially if it is very different from the way it looks to him. Read his speech, if you have not already done so. He is comfortable honoring mutually exclusive views of reality.

In exercising leadership, being able to have real empathy is essential. You can never move people off a story they are comfortable with that is part of their self-identity until you can relate to that story, no matter how cock-eyed you may think it is, as if it were your own.

It is hard to be empathetic when someone else's feeling and experience are so foreign to you. I remember an uncomfortable moment early in my time in the Massachusetts Legislature, over forty years ago. I had co-sponsored and debated on behalf of a bill that would have allowed minors to buy a condom without a prescription. (Yes, this was Massachusetts in the 1960s.) We lost, but we came closer than our side ever had before, and it was pretty clear that the bill would pass in the next year or two. I was feeling pretty puffed up as I strode out of the House Chamber into the so-called Reading Room, where legislators gathered to talk and relax.

Sitting on a couch was a colleague, a strong opponent of the bill, sobbing. I assumed that he was having some personal problem so in an act of naive fellowship I went over to inquire and console him. But his tears came from the debate over the condom bill, and its near success. To him, defeating that bill meant preserving values that he believed in deeply which had guided him throughout his life: sex was only purposeful for procreation, never for recreation. And the idea that he would be a member of the legislature when that value was abandoned was almost too much for him to bear.

It was a great lesson for me. I understood that other people's reality which was sometimes so different than mine, both had its own legitimacy and needed to be deeply understood - not condoned - by me if I was to accomplish my own purposes.

There are three advantages to empathy in leadership, none of which apply to judging.

First, some people will go along simply because you do understand how they feel and acknowledge the pain you are inflicting on them.

Second, if you deeply understand their world view, you will be better equipped to distinguish what element of that picture they are most committed to and what the elements are that they may be willing to sacrifice for those priorities.

And third, if you are empathetic to those most threatened by what you are trying to do, their friends and allies, who are undecided on whether to go along, will be more likely to be with you because of the way you have treated their friends who will be suffering the losses.

How empathetic are you? How willing are you to acknowledge the legitimacy of point of view which are radically different than the truths you hold dear?