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.