Should our Judges have Empathy? 6.26.08

Should our Judges have Empathy?
Rabbi Jonathan Jaffe, Congregation Emanu-El

This past May, President Barack Obama nominated Federal Appeals Court Judge Sonya Sotomayor as the first Latino woman to the US Supreme Court. In doing so, he fulfilled an earlier campaign promise to select nominees who demonstrate both intellect and empathy. As he said to Planned Parenthood in 2007, “We need somebody who’s got the heart, the empathy, to recognize what it’s been like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.”
Sotomayor’s nomination ignited a national debate over whether or not empathy should be used as criteria towards judgment. Her supporters argued that empathy allowed her to understand the pragmatic ramifications of her decisions, while her detractors countered that empathy leads to unfair bias towards certain groups. As we prepare to begin nomination proceedings next month, we may look to our own tradition for enlightenment. Does empathy strengthen or weaken one’s sense of judgment? Let us consider three examples from within the Jewish fold: communal, personal and divine judgment.
Throughout the narrative of the Torah, the Israelites are commanded time and again to remember that they were slaves in the land of Egypt. This rejoinder is sprinkled throughout the Torah, often as preface or conclusion to commandment. The message is clear: the impetus behind Jewish activism is personal experience. Passover, the most observed Jewish holiday here in the United States, transfers a sense of historical empathy to individuals who might otherwise never consider themselves connected. Such rituals prohibit us from encountering the world from a place of detachment. We develop fair judgment through ritualized empathy.
Towards the end of the Exodus saga, the Israelites cross the Sea of Reeds and the water closes around Pharoah’s army. According to Talmudic aggadah, the angels wish to celebrate the tormentors’ demise. And yet God admonishes them, saying, “The works of my hands are drowning in the sea, and you would sing in my presence!” God desires our empathy at all times, even for those who have shown us little in kind.
For personal empathy, let us look no farther than King Solomon, who is best known for his wise judgment. The most famous case of such discernment is found in the haftarah for parshat Mikketz. Two harlots approach Solomon, both claiming the same child. One of the women has lost her child overnight and has taken the other as her own. Solomon orders the infant be cut in half and distributed equally to each of them. One woman accepts this decision while the other retracts her claim so that the child may live. Solomon wisely rules in favor of the woman who is willing to give away a child so that it may live.
To truly understand Solomon’s wisdom, we must look deeper into his own history. His parents, David and Bathsheba, lose their first child in infancy as divine punishment for David’s actions towards Bathsheba’s first husband, Uriah. Solomon later comes of age in a chaotic household, competing for David’s throne. His brothers Abnon and Absalom are both brutally murdered by other members of the family’s inner circle. His younger brother, Adonijah, seeks to usurp Solomon as the next heir. Solomon initially spares his life, but when a second attempt is made, Solomon has his brother killed. In short, Solomon if familiar with the pain and suffering caused by a dead infant and a family in turmoil. He judges the women fairly because he recognizes their motives and emotions.
And yet the best example of judge in the Torah is unequivocally God. After all, when a loved one dies, we answer the news with the prayer, Baruch dayan ha emet - Praised be the true judge. Throughout our lives, we seek to move God from din (strict judgment) to rachamim (mercy). Note that rachamim is derived from the root rechem, womb. God encounters us as children, as though we were once in God’s womb. As any mother can tell you, there is much that a child can do to cause anger, but nothing a child can do to diffuse love.
So too Judaism mandates that we consider the other through the lens of empathy, as though they came from within us. The Torah teaches us that God desperately wants to forgive our misdeeds. In fact, in another Talmudic aggadah, God prays, “May it be my will that my mercy may suppress my anger and that my mercy may prevail over my other attributes, so that I may deal with my children in the attribute of mercy and, on their behalf, stop short of the limit of strict judgment.” God prays for empathy in making life’s crucial judgments. If it’s good enough for God, it’s good enough for me and certainly should be for those senators confirming Judge Sotomayor.
In the days of Noah, God wipes out the creatures of the earth, before promising never to do so again. God prays to live up to such a high standard of empathy. Like God, Solomon experiences the pain and suffering which accompanies tragedy and loss. This allows him to become our people’s wisest judge of all. And today, as a nation of liberated slaves, we act as agents of God when we bring empathy to our subjects. We may therefore conclude that empathy is surely an asset to those given the power to judge their peers. I can think of no greater attribute to add to our nation’s highest court.