Empathy as judicial activism?

"To Kill A Mockingbird is one of my favorite movies. Dahlia Lithwick's essay makes me wonder if Tea Party members would consider Atticus Finch a radical? (GW)

My legal hero: Atticus Finch

The Alabama single father's principles have inspired thousands – and somehow become a point of national controversy in the US

By Dahlia Lithwick
Guardian
September 1, 2010

It's almost a cliche to say that Atticus Finch is one's legal hero, like saying you like good chocolate or high thread count sheets. Still, I am one of many thousands of people who probably would not have gone to law school were it not for the fictional hero of Harper Lee's To Kill a Mockingbird, a book that turned 50 in July. I'm not alone on this. Civil rights lawyer Morris Dees of the Southern Poverty Law Center says Atticus Finch is the reason he became a lawyer, and the name Atticus has soared up the rankings for popular baby names in the past few years, no doubt because of the straitlaced attorney's status among law graduates.

While a handful of grumpy critics have recently taken against Finch for his failure to be more like Thurgood Marshall in the face of his famous defeat at trial, most of us still believe him to be everything a truly great attorney should be: a defender of the voiceless and downtrodden, a protester against mob rule, and the patron saint of hopeless legal causes. The Alabama single father who famously defended a black man, Tom Robinson, who was falsely accused of raping a white woman in the Jim Crow American south, has stood the test of time despite the fact that Atticus is almost too eloquent, ethical, honest and forbearing.

As a high-school student encountering Finch for the first time, I was shattered by his quiet moral certainty, his commitment to non-violence, and his electrifying gift for cross-examination. He represented the rule of sanity over hysteria, principle over passion, and tolerance over fear. Oddly enough, as I've grown older, I've also come to admire his skills as a parent, a professional, a member of his community, and even – anachronistic as it may sound – his dedication to work-life balance as the single parent of two children. Atticus never stops teaching me about the need to integrate your moral, professional and family lives, even when the pressure to separate the two is tremendous.

But above all, as a human, I always return to what may well be the defining line in the book, Atticus's life instruction to his daughter, Scout. As he explains, "If you can learn a simple trick, Scout, you'll get along a lot better with all kinds of folks. You never really understand a person until you consider things from his point of view, until you climb inside of his skin and walk around in it." In summer 2009, and again this July, the United States was roiled by debate about Barack Obama's promise to appoint a supreme court justice who embodies this quality of "empathy". Scores of critics asserted that judicial empathy is the same as judicial bias; that judges are at their best when they coldly and mechanically apply the law. There is no place for climbing inside anyone else's skin as a judge. There is only truth and cold fact.

How strange it is, that we have come to a place in the national debate about justice when Atticus Finch's mild admonition to his daughter to try to walk a mile in someone else's shoes has become the definition of dangerous judicial activism. While Atticus still has much to teach lawyers about race and violence and prejudice and the rule of law, I have also come to think of him as the patron saint of patient, quiet listening; a quality to which all of us ought to aspire.

Dahlia Lithwick is a senior editor at Slate, and in that capacity writes the Supreme Court Dispatches and Jurisprudence columns.