Perhaps "empathy" is not within the judicial mainstream, but perhaps that's because the judicial mainstream remains largely male-dominated. Several empirical studies, including Refugee Roulette and studies cited therein, have found that female judges vote differently from male judges, at least in certain types of cases. In asylum cases, for example, our study found that female immigration judges were 44% more likely to rule in favor of the applicant than their male counterparts (between January 2000 and August 2004). While we can't be sure of the cause of this differential in grant rates, feminist legal scholars have long suggested that female judges' personal experiences of discrimination and emphasis on caretaking and connection might lead to different outcomes in the courtroom. Moreover, anecdotal tales of life on the bench -- even, or perhaps especially, the U.S. Supreme Court -- reveal that female perspectives are still undervalued and ignored in judicial decision-making.
As Carrie Menkel-Meadow suggests in a chapter of the forthcoming book version of Refugee Roulette, we should not respond to different decision-making by female judges by suggesting that these women are "soft" or excessively empathetic. We should instead examine and revise the existing norms, tempering rules and formality with mercy. We should not let our imaginations be limited by claims that emotions such as empathy and principles such as inclusiveness have no place in the courtroom. Instead we should stake a claim for the very heart of that court, and fight to make it a place that values rather than denigrates empathy.
(Hat tip to Diane Marie Amann for the Washington Post and NY Times stories.)