Law professor John Hasnas recently wrote a very interesting piece in the Wall Street Journal questioning whether we want judges to have empathy for the litigants in a case. President Obama has explained that Judge Sotomayor has the “quality of empathy.” Hasnas asks what is wrong with having an empathetic judge that makes decisions based on “how the people directly affected by the decision would think and feel.” He then goes on to say:
Frederic Bastiat answered that question in his famous 1850 essay, “What is Seen and What is Not Seen.” There the economist and member of the French parliament pointed out that law “produces not only one effect, but a series of effects. Of these effects, the first alone is immediate; it appears simultaneously with its cause; it is seen. The other effects emerge only subsequently; they are not seen; we are fortunate if we foresee them.” Bastiat further noted that “[t]here is only one difference between a bad economist and a good one: The bad economist confines himself to the visible effect; the good economist takes into account both the effect that can be seen and those effects that must be foreseen.”
This observation is just as true for judges as it is for economists. As important as compassion and empathy are, one can have these feelings only for people that exist and that one knows about — that is, for those who are “seen.”
One can have compassion for workers who lose their jobs when a plant closes. They can be seen. One cannot have compassion for unknown persons in other industries who do not receive job offers when a compassionate government subsidizes an unprofitable plant. The potential employees not hired are unseen.
The op-ed is a great application of Bastiat to jurisprudence. Of course, when politicians don’t learn the lessons Bastiat taught so well when it comes to economics, it probably is less likely to see them applying these lessons to selecting judges.
