Notre Dame's Cathy Kaveny on John Noonan, judges, and "empathy"

Here, in the new issue of Commonweal.  An excerpt:

Obama’s critics worry that “empathy” is not merely undesirable, but inconsistent with the fundamental obligations of a judge. Republican Senator Orrin Hatch fears it is a code word for judicial “activism,” a potent political issue, if a notoriously elusive concept. In an opinion piece in the Washington Times, Wendy Long argued that empathy was inconsistent with impartiality. She truculently accused Obama of being “the first president in American history to make lawlessness an explicit standard for Supreme Court justices.”

Despite appearances, this debate is not simply partisan. It involves important and enduring questions about what it means to be a good judge. Jurist and Catholic moralist John Noonan tackled the question head-on in Persons and Masks of the Law: Cardozo, Holmes, Jefferson, and Wythe as Makers of Masks.

Noonan argues that at the heart of the legal system are two equally essential components: rules and persons. We all know the importance of rules-they are impersonal, they are impartial, they are framed with a concern for the larger good of the whole community. Neglecting the claims made by rules produces judicial “monsters” who strangle justice with bribery, arbitrariness, or bias. As Noonan notes, the Book of Deuteronomy describes God as a judge who “regardeth not persons nor taketh rewards.” A good judge must have due regard for the rules.

But rules are not enough. “There is no reason to suppose that justice is the only virtue required of a lawyer, legislator, or judge,” Noonan writes. “If [judges] are not to cease to be human, they must cultivate the other virtues of humanity.” Without these other virtues, the application of rules can become “merciless and inhuman.” Playing on the dual meaning of the Latin word persona as both “person” and “mask,” Noonan argues that rules can become masks that conceal the human faces-and human needs-of the persons to whom they apply. A judge can hide behind rules to escape responsibility for the harm he or she is causing to other human beings.