The role of empathy and compassion in the judicial process

While Judge Sonia Sotomayor’s personal odyssey is truly inspirational, one may still challenge President Obama’s search for a candidate who possesses the quality “of empathy, of understanding and identifying with people’s hopes and struggles.” When announcing his nominee, he praised Sonia Sotomayor as a judge with “a common touch, a sense of compassion, and an understanding how the world works and how ordinary people live.”

One might think that Judaism would welcome the exercise of these qualities in the judicial process. Does Judaism not call for compassion for the poor and downtrodden?

Yet the Torah addresses the judge with the imperative, “You shall not show deference to the poor man in his dispute” (Ex. 23:3). The great 12th-century Jewish jurist, Maimonides, codifies this law in the context of legal situations where the exercise of compassion is not only misplaced but prohibited. In connection with the case between two litigants, one wealthy and the other poor, Maimonides writes: “And similarly in a monetary case, one may not have a compassion for the [poor] man. [Although the judge could think that] the wealthy litigant and I are duty-bound to support him, let me cause him to win this lawsuit so that he can be supported in a dignified manner. Therefore the Torah admonishes [the judge], “Do not show deference to the poor in his dispute.” (hilkhot Sanhedrin 20:4)

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Maimonides explains the judge’s inclination to decide the case in favor of the poor litigant. Indeed, the judge’s compassion for the poor is based on the noble idea of human dignity that all humans are entitled to. Yet it is wrong because there are two parties to the litigation and it is wrong to award the case to the poor at the expense of his legal opponent. The law must be applied objectively without favoring the indigent party. In effect, the Torah is alerting us to the basic fact that when one party is granted a legal victory, another party is granted a legal defeat. The judge may not grant a financially comfortable party (or class) a defeat for the sake of supporting the poor party.

Where is the role of compassion and empathy in Judaism? Individuals should be compassionate in dispensing alms to the needy or providing a means of livelihood for the unemployed. Individuals should be compassionate in reaching out to the widow, orphan, or stranger. The community is responsible to help the needy through the establishment of soup kitchens and other means of preserving the dignity of the downtrodden. However, the law must be applied objectively and may never become an instrument of advancing the cause of one sector of society at the expense of another.

Throughout the ages, when poor Jews asked their rabbi about the kashrut of a chicken, the rabbi usually exercised lenient judgment so that the poor person would have a decent meal on Shabbos. In such situations, compassion and empathy are appropriate because those decisions do not impact another party. Therefore, in matters of Jewish law defining the relationship of the Jew to God, a halachic decision based on compassion is appropriate. However, whenever two parties are involved, as in virtually all cases that appear before the Supreme Court, compassion for one party will be at the expense of another party. Therefore, the Torah admonishes the judges to apply the law objectively.

American leaders may also exercise compassion. The president of the United States may grant pardons and clemency to convicted criminals. Governors of states may also express compassion by granting pardons to felons. But a judge must apply the law objectively.

In concert with Jewish law, each Supreme Court justice takes the following oath:

“I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God.” (Title 28, Chapter I, Part 453 of the United States Code)

My grave misgivings are about President Obama’s criteria in the selection of his nominee for the Supreme Court. How is it possible that a graduate of Harvard Law School fails to grasp the simple truth that law (involving consequences for two parties or classes) must be applied objectively, without compassion or empathy, as clearly expressed in the justice’s oath of office?