The Latest on Empathy in the Court
by: Alana Yu-lan Price on May 29th, 2009 | 2 Comments »
President Obama has reportedly dropped the word “empathy” from his speeches about the Supreme Court, likely in response to conservatives’ claims that empathy has no place in our justice system.
How strange. The president is expected to end each speech with a religious invocation: “God bless America.” But he gets smeared for seeking to infuse our public institutions with empathy, one of the most spiritual human impulses.
Since my post last week about this issue, the empathy debate has continued to boil on, and has even taken a few unexpected turns.
Yesterday Charles Krauthammer delivered a fairly routine argument against Obama’s invocation of empathy, saying “empathy is a vital virtue to be exercised in private life” and in legislation, but not in the justice system.
Today, however, David Brooks took an unexpectedly strong stand in defense of empathy, describing it as a basic force in all human decision-making and suggesting that Sonia Sotomayor “will be a good justice if she can empathize with the many types of people and actions involved in a case, but a bad justice if she can only empathize with one type, one ethnic group or one social class.” In other words, the more empathy the better.
Stanley Fish succeeded in cutting to the heart of the debate in his op-ed this past weekend. The empathy controversy, he explained, is rooted in the fissure between justice and legality:
You might think that “legal” and “just” go together, and sometimes they do; but in the real world “just” and “legal” can come apart. A decision is just when it reflects an overarching vision of what is owed is to each man and woman. A decision is legal when it can be said to follow from established rules, statutes, precedents.
In this framework, an empathetic judge is one who rules on legality with an eye toward justice.
Fish goes on to explain that influential lawyers have criticized the Brown v. Board decision as lacking a strong legal basis. Only empathetic judges (rather than those rigidly obsessed with precedents) could have made that ruling, which we now see as so basic and foundational to our society.
It’s disappointing that despite Obama’s strong words about empathy, he appears nevertheless to have picked a nominee who seems inclined to hew narrowly to precedent, rather than taking a more expansive view of the courts’ role in advancing equality.
Just like you, Alana, I’ve been following the “empathy conflict” in the news recently. I find it interesting that Barack Obama stopped using the term, since it ignited such a fire storm from the Right. In a sense, he’s had to give up the high moral ground in order to win his nominee’s approval. And this despite his declaration in The Audacity of Hope that “empathy is at the heart of my moral code, and it’s how I understand the Golden Rule…as a call to stand in someone else’s shoes and see through their eyes.”‘
I’m saddened, but I’m not surprised. Empathy is a term that people associate more with women than with men. And as those people “know,” women are the emotional and, therefore, the more irrational gender. Empathy is just one of their irrational emotions. And I can tell you from many years of teaching Women’s Studies, that any quality associated with women is seen as second-rate. It’s better to be rational than empathetic; it’s better to be logical than emotional; it’s certainly better to be anything rather than irrational. And so by virtue of her gender, Sonia Sotomayor, will have to prove that she is more rational than a male appointee. It’s the double standard all over again, but this time focused on women’s emotionality rather than our intelligence (because Sotomayor’s already proven that!).
Sotomayor will have to demonstrate that she won’t let her personal life color her legal opinions, especially now that conservatives have dug up her 2001 quote, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” This is too bad, because Sotomayor is right. Women and people of color DO have a richness of experience that most white men don’t. Why? Because white men belong to the dominant (the hegemonic) group. They don’t need to know what women or people of color think or how our experiences differ from theirs. In fact, white men have to work pretty hard to learn about our worlds. But any successful woman or person of color has had to learn how to operate in the white male world, or they would not have succeeded.
In order to make all of this clear will take a lot of educating, and approval processes don’t seem to have that kind of time. What’s ironic is that the whole commotion is based on a misunderstanding of how the human mind functions. Our society may believe that there’s a split between mind and feelings — between rationality and emotion — but recent science has shown that this divide does not exist. For instance, Antonio Damasio in his book Descartes’ Error refutes Descartes’ dualism. He demonstrates by looking at studies of people with brain damage that rationality does not function without emotional input.
So Alana’s right when she implies that to be a good judge a person needs to simultaneously feel empathy for multiple parties in a conflict. And I believe that Sonia Sotomayor has demonstrated her ability to do so. I just hope Sotomayor doesn’t overturn Roe v. Wade (but that’s a whole different topic).
Thanks so much for this insightful post, Nancy. I agree that empathy’s association with women is a major factor in the empathy-bashing and in people’s knee-jerk assumption that empathy has no place in the public sphere.
It’s ironic (but predictable) that Sotomayor has been attacked both for being too empathetic and for being too tough and assertive toward the lawyers she’s questioning.
Here’s a good blog post about the sexism that has been at play in the attacks on Sotomayor’s “temperament”: http://blogs.abcnews.com/politicalpunch/2009/05/on-sotomayor-and-temperament.html