Clarence Darrow and the Justice of Obama's Empathy Test

By John Aloysius Farrell, Thomas Jefferson Street blog

It's perhaps not surprising that President Obama, a community advocate, liberal hero, and lawyer from Chicago, should list "empathy" as an essential quality for a Supreme Court justice. The president's Hyde Park neighborhood is soaked in the spirit of America's greatest defense attorney, Clarence Darrow—a man whose character was defined by empathy.

Were he alive today, Darrow would endorse Obama's call for justices who empathize with their fellow human beings. And he would vehemently contest the conservative argument that, as columnist Charles Krauthammer puts it, empathy "stops at the courthouse door."

Darrow's great motivating force was "a strong emotional nature which has caused me boundless joy and infinite pain," he once confessed. "I had a vivid imagination. Not only could I put myself in the other person's place, but I could not avoid doing so."

Mary Field Parton, a onetime lover and longtime friend, recalled a visit to a newly opened prison with Darrow. She was startled when he started to weep. The stone and iron had been put in place by the same working class it was destined to imprison, he told her. "They build the jails to lock themselves up in."

Said Parton: "He always understood. No matter how bad, how wicked a person was... He just understood out of the greatness of his heart, and his knowledge of human nature and the temptations and the frustrations that made people act as they did."

Darrow was a determinist. He had an unshaken belief that men and women became who they were because of their genetic makeup, early childhood experiences, and social environment. "In my vocabulary," he wrote, "there is no such word as 'guilt' and no such thing as moral wrong."

He scorned the concept of "free will." He had nothing but contempt for judges who imposed conformity, or tried to regulate social behavior in the name of abstract principles. He recognized that the law, as often as not, was a construct designed to secure the rich and powerful. Society was "organized injustice," Darrow said. He would frown and groan, today, at the suggestion that justices be "strict constructionists."

"What society and commerce mean to teach is that the strong and cunning may and should overreach the weak," Darrow wrote, "but they must only take their victims' money in certain standardized ways."

"It is sheer nonsense," he said, "to think that the laws have much to do with conduct or virtue, or that they are made to be generally enforced, or that they are always right or just, or that they are ever equal."

In his famous trials, debates, and public speaking, and the often-delightful fiction he wrote, Darrow helped mold the modern liberal view of crime as a symptom, and of criminals as the creations of their environment. We are all shipwrecked sailors, clinging to a life raft, tossed by great forces we cannot control. The best we can do, he said, is to try to ease each other's suffering.

Darrow was born in a small town in Ohio, where his father was the village infidel—a Democrat and free-thinker in a community of churchgoing Republicans. Their home was filled with books, and he was raised on skeptics like Paine and Jefferson and Voltaire. He arrived in Chicago when he was 30, and almost immediately took to arguing for underdogs—the Haymarket bombing defendants, assassin Patrick Prendergast, and the great socialist labor leader Eugene Debs.

Darrow and his wife Ruby lived in a relatively modest but roomy Hyde Park apartment overlooking the University of Chicago, not far from Obama's home. He loved the view from his windows of Lake Michigan and Jackson Park, where he had played a small role, as a young municipal attorney, in the city's staging of the Columbian Exposition, the world's fair of 1893. After his death, Darrow's ashes were scattered in the park's lagoon.

Darrow had strong ties to the university where Obama would, years later, teach constitutional law, and where promising students still vie to be Clarence Darrow Scholars. He lectured at the university, and some of the school's instructors were regular attendees at Darrow's "Biology Club," an informal gathering he hosted to stay well-versed in the latest scientific and academic theory. (He also preserved the liberty of one professor who was prosecuted for adultery after being caught with an Army officer's wife during World War I.) Darrow's funeral was held, in 1938, in the university chapel.

Like others of Chicago's famous sons, Darrow fails to qualify for sainthood. His noblest victories—the Scopes Monkey Trial, Ossian Sweet, and Loeb & Leopold cases—came when he was almost 70 years old; much more of his professional life was spent in the bruising worlds of ward politics and violent labor disputes. He was at heart a 19th-century American—an unrelenting foe of the Robber Barons, but as prone as any man to what his friend, the novelist Brand Whitlock, called "the awful compulsion of the age, to make money." Darrow was a cheerful cynic who infuriated his liberal friends by joining and abandoning various causes, took women where he found them, and, like other lawyers of his era, was not beyond suborning witnesses and jurors.

Darrow gave himself little credit. He was as much an instrument of the great forces that made him as the criminals he defended or the judges he defied, he said.

"My sympathies always went out to the weak, the suffering and the poor. Realizing their sorrows, I tried to relieve them in order that I myself might be relieved," he wrote. "I know why I have taken this course—I could not help it. I could have had no comfort or peace of mind if I had acted any other way."

With Darrow's talents, another man or woman could have acquired great wealth and power—maybe even a Supreme Court seat. But, in the end, his famous cynicism was not Clarence Darrow's defining quality. Empathy was.

"Often my clients did not do the things with which they were charged," he said. "Sometimes they did do them, and then I tried to make courts and juries understand the reasons why."

Check out our political cartoons.

Become a political insider: Subscribe to U.S. News Weekly, our new digital magazine.