Why do judges wear robes? Does their peculiar mode of dress tell us anything about the ideal character and qualities of a judge? Do the robes indicate whether "empathy" - a quality highly touted by President Barack Obama in his appointment of Sonia Sotomayor to the Supreme Court - ought to figure in the judicial temperament?
From time immemorial, the special quality of a judge has been thought to be impartiality. Lady Justice is always pictured blindfolded. She does not see persons; if she did, she might empathize with some and not others. After all, the flip side of the gentle emotions of empathy and pity are the harsh feelings of anger and revenge. If you empathize with the victim, you might overlook the rights of the accused or you might exact retribution rather than administer justice. Alternatively, if you take pity on the defendant, you might overlook the rightful claims of the plaintiff and the state.
A judge's black robe is the prime symbol of her resistance to passion, including the passion of empathy. In donning the robes of office, she covers over her own identity, with its predilections and biases, and becomes a servant of the law. The aspiration expressed by the robe is to be an almost disembodied mind. Judges regularly fall short of that aspiration, but the aspiration itself is central to the judicial task.
We should not forget that this antipathy to empathy enables the courts to be an effective recourse for the lowly and oppressed. Solitary individuals or members of minority groups whose claims are not heard by the more popular branches gain a hearing before the bar, not because judges are empathetic but because judges listen carefully to legal arguments without regard to the persons making them. It is the disregard for persons - ignoring their political strength or weakness - that establishes equality before the law. The mind of the judge, focusing solely on the arguments, may find that the lone individual has a better argument than the big corporation or the majority faction or the government. Empathy corrupts the foundational principle of equality before the law.
The home of empathy is in the political branches: the legislature and the executive. Representatives have constituents whom they must please; they do so in part by sharing their passions and concerns.
