With In Defense of Judicial Empathy, Thomas Colby undertakes the first comprehensive scholarly treatment and defense of the President’s arguments and of empathy as an essential and unavoidable component of good judicial decisionmaking. And he ties the centrality of empathy to broader debates over the judicial role.
Colby begins by identifying and correcting the arguable cause of much of the controversy over the President’s standard—the confusion between empathy and sympathy. While empathy is a relatively new word of contested meaning, Colby adopts the dictionary definition: the “action of understanding, being aware of, being sensitive to, and vicariously experiencing the feelings, thoughts, and experience of another of either the past or present without having the feelings, thoughts, and experience fully communicated in an objectively explicit manner.”
Empathy is the cognitive skill of being able to see a situation from someone else’s perspective and to understand how and why someone sees, feels, and acts as they do. That is fundamentally different than sympathy, through which a person is affected by and acts in support of the feelings of another. As Colby puts it, sympathy is feeling for someone; empathy is feeling with someone.by Howard M. Wasserman