f “As a Father Shows Compassion for His Children”

References

1.  D’Arms, supra note 12, at 153–4. This is sometimes referred to as a form of emotional contagion. The emotional-mirroring aspect of empathy does not depend on complex cognitive perspective-taking; it can be relatively automatic and is observed in animals and in human infants, strongly suggesting that it is both phylogenetically old and developmentally basic. See Decety, supra note 13, at 151–3; Hoffman, supra note 12, at 441, 444–6.
2.  Hoffman, supra note 12, at 442–3, 447–8 (describing "empathic overarousal," in which empathizers becomes focused on their own distress and may abandon or ignore the object of their empathy, and "empathic anger," in which empathizers react to perceived injustice even if the victim is not angry but rather sad or afraid).
3.  Hoffman, supra note 12, at 440.
4.  Batson, supra note 16, at 91 (emphasis omitted).
5.  Hoffman, supra note 12, at 445.
6.  Batson, supra note 16, at 91.
7.  Hoffman, supra note 12, at 449.
8.  Henderson, supra note 36, at 1606 (1987) (citing G.E. White, Earl Warren: A Public Life 228 (1982)). See also Reich, supra note 39, at 91 (Justice Douglas had great "empathy for minority groups of all kinds and the powerless wherever they were found.").
9.  Little, supra note 36, at 209 (sympathy "suggests an affinity between" judge and subject, raising a risk that "pity will blind the judge").
10.  Bandes, supra note 8, at 141 & n.37 (quoting pundit); see also ibid. at 146 (describing how many commentators and scholars "were particularly troubled by Obama’s stated preference for judges who would exercise empathy, not simply for all litigants, but for certain groups"); Colby, supra note 8, at 1951.
11.  Bandes, supra note 8, at 141.
12.  Murphy & Hampton, supra note 28, at 166–73 (wrestling with a seeming paradox: if mercy is a departure from justice, how can we not regard it as injustice for a judge to show mercy?); Markel, supra note 29, at 1425 ("from a retributivist or liberal perspective, mercy based on compassion is just as problematic as mercy motivated by bias or caprice").
13.  Goetz et al., supra note 23, at 366 ("Romantic love…is a poor comparison for compassion. Instead, parental, friendship, or altruistic love would be better comparisons." (emphasis added)). See also The Science of Compassionate Love: Theory, Research, and Applications (Beverly Fehr et al. eds., 2009).
14.  Abramsky, supra note 64.
15.  Maimonides, Hilkhot Sanhedrin11:5. Note that according to Maimonides there is a specific commandment not to spare the mesit; cf. Maimonides, Mishneh Torah, Minyan ha-Miṣvot 19.
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16.  Mishneh Torah, Hilkhot Sanhedrin2:3. As noted by Maimonides’ commentators, Maimonides provides the qualification "extremely" here in order not to contradict the requirement, noted by him in Hilkhot Sanhedrin 2:6, that a judge simply be old (baal seva).
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17.  Igrot Moshe, Orah Hayyim5:38.
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18.  Mack, supra note 95, at 118.
19.  Goetz et al., supra note 23, at 364–5 (compassion is best communicated through touch, then by voice; "Touch is a powerful means by which individuals reduce the suffering of others"; we sooth and "form cooperative bonds" through kind touch and compassionate vocal display).
20.  Tanenhaus, supra note 91, at 24 (quoting Judge Tuthill).
21.  Tanenhaus, supra note 91, at 53.
22.  Goldin, supra note 58, at 24.
23.  Colby, supra note 8, at 1946 (defining the "ideal empathic judge" as one who "has a talent for empathy and makes a conscious effort to empathize with all parties, thus ensuring that she is not subconsciously undervaluing the interests of those whose perspectives she does not instinctively appreciate").