President Obama's campaign to promote judicial empathy has proved a failure, rejected by his own judicial nominees and the public at large. Based on an examination of current popular conceptions of justice and a survey of scientific understanding of what empathy is and how it works, this article examines whether judicial empathy is a cause worth saving and, if so, whether it can, indeed, be saved. It argues that the advocacy of judicial empathy can and should be revived and suggests a strategy for politicians, judges, and others who desire to promote it. This strategy operates from two basic presumptions. First, judicial empathy is not in any sense a panacea for the disparities of the justice system. Rather, empathy is simply a tool, which if properly directed, may allow some judges to gain a fuller understanding of the cases before them. Like any other tool, its effectiveness depends in good measure on the skills of the user. The benefits of judicial empathy should not, therefore, be overstated to a public that is already skeptical about its appropriateness. Second, advocates of judicial empathy must recognize that the reasons why judicial empathy is attractive to them are probably not shared by the public at large. If the advocacy of judicial empathy is to achieve any success, it must tap into the public's conceptions of and concerns about the justice system and demonstrate how empathy advances the former and addresses the latter.
- judicial empathy,
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