From the Judge's Chambers: Empathy and The Rule of Law

By Judge William C. Whitbeck

The ancient Greeks bequeathed to us certain ways of thinking, constructs that are now hardwired into our brains without our even being consciously aware of them.  One of these constructs is the rhetorical triangle.  At the triangle’s apex is ethos, indicating the character and credibility of the communicator.  At the base of the triangle on the left is logos, reflecting the logic of the message.  And at the base on the right is pathos, dealing with the emotion of the audience. 

Now, fast forward to the present day.  There is a debate occurring, in Michigan and elsewhere, about the type of judges that we should have in our legal system.  President Obama articulated one view—let’s call it the “empathy” view—when he stated that when selecting judges he would:
“seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book; it is about how our laws affect the daily realities of people’s lives—whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.  I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.”

This statement provoked an immediate outcry.   Senator Jeff Sessions, for example, articulated another view, let’s call it the “rule-of-law” view.  He said that our legal system would only be “further corrupted” as a result of the view that in tough cases, the critical ingredient for a judge is “the depth and breadth of one’s empathy.”  At one level, this criticism is certainly correct.  It is a small step from empathy for to identification with one or more of the litigants in a given case.  And then it is only another small step from identification with not just the individual litigant but with the entire class of litigants with the same or similar characteristics.

Once a judge takes these steps, the single best word that describes that judge is “biased,” and bias is the opposite of what we want in our legal system.  If a judge makes the decision to become a “plaintiffs’ guy” or an insurance company defender, that judge has passed the point of no return. The identity of the litigant, not the validity of that litigant’s claim, becomes the point of focus and impartial decision-making takes a back seat.

But is our legal system all about logic?  Only if we are willing to accept the proposition that judges are somehow not human beings.  Since this is obviously untrue, we must recognize that judges see things through the prism of their own knowledge, experiences, and background.   As Kenneth Chestek points out, modern thinking about brain science and cognitive psychology suggests that humans cannot help but interpret the world they see through the lens of their personal experiences.  One of his sources says that your thinking is “constrained by the frames and metaphors shaping your brain and limiting how you see the world.” 

It follows then that emotion based reasoning often influences judges.  Does this mean that such judges are “empathy” judges rather than “rule-of law” judges?  No.  It simply means that judges are human and that they have human ways of reaching legal conclusions. 

The key point here is balance.  On the one hand I suggest, with due respect, that President Obama’s formulation is deeply flawed.  That formulation puts the focus on the identity of the litigant, not the validity of that litigant’s claim.  But the ideal judge should not be a soulless automaton, spitting out decisions based upon the rote and—by definition—unthinking application of abstract rules of logic. 

Judges at the extremes of either logos or pathos are without the necessary balance that is the essence of fair and impartial judicial decision-making.  Give me a thinking human being in a black robe—a judge who can deal in balanced way with both logic and emotion—every time. 

Judge William C. Whitbeck is one of 28 judges on the Michigan Court of Appeals. A Kalamazoo native, he is a graduate of the Northwestern University’s Medill School of Journalism and of the University of Michigan Law School. He served as chief judge of the Court of Appeals from January, 2002 to January, 2008. He is the past chairperson of the Michigan Historical Commission, a fellow of the Michigan and American Bar Foundations, and a member of the Michigan Law Revision Commission. In 2007, he won the State Bar of Michigan’s short-story competition with “In the Market,” a story of bootlegging and murder set in Prohibition-era Michigan. He has also completed one novel and is hard at work on a second. He and his wife Stephanie live in a completely renovated 130-year-old home in downtown Lansing. He can be reached at