CJ Abrahamson and “Judicial Empathy”

Continuing with GOP3’s attention to Chief Justice Abrahamson’s record:

Barack Obama has come under significant criticism for saying that he will appoint judges who are “empathetic.” Speaking at a Planned Parenthood conference, Senator Obama said that: “We need somebody who’s got the heart, the empathy, to recognize what it’s 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.” In his statement opposing the confirmation of Chief Justice Roberts, Senator Obama said that in the close cases, “the critical ingredient is supplied by what is in the judge’s heart.” Critics rightly point out that we are a nation of laws, not men, and that their oath requires judges to administer the law fairly, regardless of how sympathetic or unsympathetic a party in a case may be.

Unfortunately, Senator Obama’s vision of the “empathetic judge” who decides cases based on feelings rather than the law finds a friend in Chief Justice Shirley Abrahamson of the Wisconsin Supreme Court. She has written that a judge should interpret and apply the law with a special concern for the more sympathetic party (Commentary on Jeffery M. Shaman’s The Impartial Judge: Detachment or Passion? 45 DePaul Law Review 633, 639-42 (1996)).:

“Judging requires more than such a mechanical application of pure reason to legal problems. To be sure, legal principles and logic necessarily influence the outcome of every case. But though they alone will determine many cases, in other cases they will not suffice. Principles may admit of more than one interpretation, conflicting principles may apply, or the application of principles to the facts may be unclear. In cases such as these, the blindfolded judge who is blind to the real world in which the parties live is blind indeed, bereft of a basis on which to make an intelligent, let alone fair, decision.

“Oliver Sacks, the neurologist whose experiences in a Brooklyn hospital became the basis of the movie Awakenings and whose book An Anthropologist on Mars was a bestseller for much of this past year, describes the case of a judge deprived of emotion by frontal-lobe damage from shell fragments in the brain. Though in a basic sense the judge was impartial, free of emotion and the biases that go with emotion, the judge resigned his judgeship, ‘saying that he could no longer enter sympathetically into the motives of anyone concerned, and that since justice involved feeling, and not merely thinking, he felt that his injury totally disqualified him.’

“Despite their judicial oath to ‘administer justice without respect to persons,’ and to ‘faithfully and impartially discharge’ the duties of the office, judges must remember that individuals are not fungible and that the legal system cannot treat them as such. We laugh when we say that rich and poor are equal because both are free to sleep under the bridge. But the laughter–invariably nervous–reminds us that a judge must judge different people differently. A just and equitable jurisprudence is based on consideration of individuals. A judge who cultivates a sense of connectedness with the parties, witnesses, jurors and staff with whom she interacts will come to understand their experiences. She will thereby come to show tolerance and empathy for those who appear before her, respecting their differences to ensure consistency in her application of the law.”

C.J. Abrahamson has said similar things before. In an article on “feminist values,” she wrote, “As ‘outsiders to the system,’ women judges should make a special effort to understand other outsiders – the poor, the differently abled, members of racial, ethnic, religious, and cultural minorities.” Toward a Courtroom of One’s Own: An Appellate Court Judge Looks at Gender Bias, 61 University of Cincinnati Law Review 1209, 1221 (1993).

In another article, she praised “therapeutic jurisprudence.” She believes that appellate courts should seek to cultivate the “healing effects” of the law. The Appeal of Therapeutic Jurisprudence, 24 Seattle University Law Review 223, 223 (2000).

This mindset of “picking winners” based on sympathy comes out in Chief Justice Abrahamson’s decisions on the bench. In one case, she felt the “equities,” “policy,” and “the image of justice” compelled her to rule a certain way, which Justice Sykes characterized as “an act of judicial will.” State v. Picotte, 2003 WI 42, ¶¶ 84-87 and 92-94 (Sykes, J., dissenting). In another case, Justice Prosser accused Chief Justice Abrahamson’s majority opinion of ruling for the plaintiff because “Luann Gehin is a sympathetic figure, but her victory in this court comes at a heavy cost.” Gehin v. Wisconsin Group Ins. Bd., 2005 WI 16, ¶ 155 (Prosser, J., dissenting). In yet another case, Justice Roggensack pointed out the great weakness of the sympathy approach: “Although it is easy to understand the emotional tug that Jones’s claims exert on the courts, employing consistent procedures in each case protects against arbitrary decision making in all cases.” Wisconsin Auto Title Loans v. Jones, 2006 WI 53, ¶ 112 (Roggensack, J., dissenting).

Do Wisconsin voters want their judges to set aside the laws passed by the legislature and instead go with their gut? Is that anything other than “legislators in robes,” platonic guardians who impose their own values on our society?

• Suhr on Nixon on Health Care - February 23rd, 2010
• Did the USCCB Foresee Dead People? - February 8th, 2010
• LWV-WI v. LWV-WI - February 2nd, 2010
• Do unto others . . . - January 18th, 2010
• Jumping to Conclusions - January 7th, 2010