“As a Father Shows Compassion for His Children”

Abstract

Conventional wisdom holds that judges ought to be emotionless. Occasional counterclaims, however, have posited compassion as an essential element of judicial wisdom. When compassion is thus privileged, it is understood as uniquely parental. We use as our lens two examples, one ancient and one modern: the disqualification, in the Babylonian Talmud, of childless men from judging capital cases on the ground that they are “devoid of paternal tenderness,” and Judge Julian Mack’s vision of the early 20th century juvenile court judge as a “wise and merciful father.” In both narratives judges are asked to have the capacity for empathy, which is believed to spark compassion, which in turn is predicted to manifest in mercy. In neither narrative, however, is this empathic arc seen as critical for judging in the ordinary case. A contemporary study showing the jurisprudential impact of fathering daughters represents a modern iteration of the judge-as-caring-parent meme.