Empathy, Sotomayor, and Democracy: The Conservative Stealth Strategy

by George Lakoff

The Sotomayor nomination has given radical conservatives new life. They have launched an attack that is nominally aimed at Judge Sotomayor. But it is really a coordinated stealth attack - on President Obama's central vision, on progressive thought itself, and on Republicans who might stray from the conservative hard line.

There are several fronts: Empathy, feelings, racism, activist judges. Each one has a hidden dimension. And if progressives think conservative attacks are just about Sotomayor, they may wind up helping conservatives regroup.

Conservatives believe that Sotomayor will be confirmed, and so their attacks may seem irrational to Democrats, a last gasp, a grasping at straws, a sign that the party is breaking up.

Actually, something sneakier and possibly dangerous is going on.

Let's start with the attack on empathy. Why empathy? Isn't empathy a good thing?

Empathy is at the heart of progressive thought. It is the capacity to put oneself in the shoes of others - not just individuals, but whole categories of people: one's countrymen, those in other countries, other living beings, especially those who are in some way oppressed, threatened, or harmed. Empathy is the capacity to care, to feel what others feel, to understand what others are facing and what their lives are like. Empathy extends well beyond feeling to understanding, and it extends beyond individuals to groups, communities, peoples, even species. Empathy is at the heart of real rationality, because it goes to the heart of our values, which are the basis of our sense of justice.

Progressives care about others as well as themselves. They have a moral obligation to act on their empathy - a social responsibility in addition to personal responsibility, a responsibility to make the world better by making themselves better. This leads to a view of a government that cares about its citizens and has a moral obligation to protect and empower them. Protection includes worker, consumer, and environmental protection as well as safety nets and health care. Empowerment includes what is in the President's stimulus plan: infrastructure, education, communication, energy, the availability of credit from banks, a stock market that works. No one can earn anything at all in this country without protection and empowerment by the government. All progressive legislation is made on this basis.

The president wrote of empathy in The Audacity of Hope, "It is at the heart of my moral code and it is how I understand the Golden Rule - not simply as a call to sympathy or charity, but as something more demanding, a call to stand in somebody else's shoes and see through their eyes."

Continued>>>
http://www.commondreams.org/view/2009/05/31-0

Yes. Empathy is very dangerous for them.

I wonder what the role of empahty is in a judge. Does that equal leniency? Or does that lead one to require recognizing the risks to being lenient and make it a cost benefit analysis?

Also, does it require some sort or remorse, therefore a judgement on a person's sincerity? And does that automatically give a leg up to an individual vs. a faceless corporation, which in actuality is made up of real people who also get affected.

We've seen lots of quotes to the effect that Alito and other "non-empathic" judges have a fair amount of empathy. It gelds Lakoff's steed of an argument.

We've seen discussion of the role of empathy. Yesterday NYT's op-ed piece by John Blow dug up new ground in trying to redefine words in a self-serving way. Empathy can lead to bias, of course, but bias is far from racism--you have to actually *do* something to be racist, he argued: Apparently hating blacks because they're black isn't racism; saying that a Latina would make better judgments than white males--or that white males would make better judgments than a wise Latina--isn't racism. Dunno about that. I find Blow's reasoning to be specious and goal driven--he empathizes with Sotomayor and thinks her comments are right, so he desparately needs to find a way to justify her and her comments. Apparently, if you're a wordsmith and a word doesn't have the right shape, you just beat it into the prerequisite form.

So, I think empathy is good when you're trying to judge a person and come up with a sentence, with a penalty. Did the person do X? Sure, but given his situation he was hard-pressed to do anything else. Or perhaps you realize that he had no decent reason to do it and did it out of sheer malice. Empathy good, within bounds.

Empathy also bad. You see a person and know that he did X, but it makes an entire group look bad. So you hedge, because, well, he's not *really* responsible for what he did. Sure he didn't need to do it, but to condemn him is to condemn a group. Look at the entire OJ thing, right or the Rodney King beaters? To condemn OJ would be to condemn a symbol, to not punish the cops who beat King would be to justify another kind of symbol. All-white juries rendered verdicts of 'not guilty' to whites who killed blacks, mostly out of empathy. Note that this didn't usually involve, at least until fairly recently, finding the killer guilty and then imposing a trivial sentence. This is where empathy wrests justice.

See the difference? In one case you're using empathy to help decide the penalty. In the other, you're deciding *guilt*. Possibly not a big deal, you say? At low levels of the judiciary, it means injustice, but no one verdict bears huge amounts of injustice.

Now take this to SCOTUS, where the person affected is more often than not unimportant--in Kelo the person involved was unimportant, it was the precedent that mattered to most people. Roe is only remembered because of the policy that was set, not the effect on the young woman involved. Empathy can well mean--it need not always mean--that policy is set for the nation because of empathy for a single person. Or do we ignore the person involved and decide policy for the masses ignoring the individual person? This is tough, because hard cases make for bad law, and when you get to setting the law for the nation bad law is a problem. It's one reason the court is very careful about which cases it selects. It will often overlook individual instances of injustice if to provide justice in that particular case will mean making the system less just. The best we hope for is that the lower courts make good decisions and minimize the injustice at the end.

But let's look at empathy a different way. It's good, we'll stipulate. Now let's say I'm a rich white male. I'm on the SCOTUS. I see a case with a RWM similar to me versus a poor person of color, but the law was ambiguous and egregious enough that it finally came before the Supreme Court. I empathize with ... the RWM? With the PPoC? I can see the RWM's problem and why he did what he did, but not so much the poor person of color. I'm going to be biased to the RWM. Empathy is good? Of course not, it's why Obama didn't said he wanted judges that empathize, he said he wanted judges that empathize with a certain kind of people. Does what the RWM actually did matter? What if he's wrong, but to rewrite the law to punish him would have the effect of mostly punishing PPoC? Do I focus on the case or on policy--after all, Sotomayor also said that the appelate bench is where policy is written, even if she's not supposed to say that or like it. But let's say, at the end, that the RWM was a bastard, but a bastard that I could empathize with because of the richness of my experiences. That means empathy sucks--and when shown in terms of the decision, quite possibly wrong (which was part of Sotomayor's point). The problem is that it's *bad* empathy that's bad, and *good* empathy that's good. Too bad there's no universally decreed meaning to "bad" and "good"; both are value judgments relative to something or someone, unlike the way a good law is written, which merely stipulates which behaviors are banned or permitted.

Note that empathizing with one party in a suit while not empathizing with another will affect your judgment. The usual word for this is "bias"--we usually think of bias against people, but you can just as well be biased towards somebody. In the previous case I could be accused of being biased because I sided with the person who probably was deserving of being smacked; the bias could have gone the other way, except that there are those what would say 'good', simply because of the skin colors or genitals involved.

However, when Sotomayor made the now notorious comment, the thrust of her argument was to counter the idea that "we" judges aspire to overcome our biases and empathy in deciding cases. (Notice: "deciding cases", not "formulating penalties"). As such, she was thoroughly trouncing a straw man, she stripped the modality out of the counterargument and thus altered it beyond recognition. Why do I say this? Because nobody sane actually says judges actually overcome their biases, they said that judges should aspire to overcome their biases. Sotomayor's response was that these biases might actually be *good*, that perhaps we shouldn't aspire to overcome our biases, to neuter our empathy. In other words, when we're trying to help somebody, we don't ignore the oath we took to be unbiased and impartial in judgment, in trying to uphold the law as written to the greatest extent possible. Instead, we give vent to our biases and call bias "justice." When we rule we look at the law and at evidence, and then put our scale on the side of the melanin content, genitals, and SES that we think is deserving of our help. Whether or not these latter considerations are more important than the law and evidence, well, who's to judge?

The NYT op-ed page today, I think it was, said she was making the exact opposite point, which is silly. She could have just said she agreed with the people she was taking issue with, rather than go on for a bit about how she disagreed with them in everything but minor trivialities. The writer was in need of supporting both his (her?) own private values and the partisan goal, leading, of course, to a brief denial of reality. If reality doesn't have a liberal bias, put reality back into the forge. In this case, reality is "progressive", not just "liberal." Poor NYT writer.

Of course, for the most part partisans assume that their biases are just and their stereotypes fair. I've seldom met a partisan who said otherwise, right or left. Both have good reasons for their beliefs, and can pick and choose evidence, carefully sifted through their confirmation bias filters, to support why they're right and the other is wrong. Then again, this is also the case with mose legal cases--few go get to the SCOTUS convinced they're wrong and really should lose. Never failing to invoke Godwin's Law, I'll add to it: Hitler and Stalin both were convinced that they were good and just,and that what they did was necessary for "true" justice. It's what makes people who consider their private morality superior to public morales and law so scary, once they have power, whether it's the leader of a nation, a judge, or a boss.

I've said before: I would have great respect for a panel of justices who handed down a verdict, saying that the law was clear and Constitutional but they could only hand down that verdict with great reluctance because they think the law is wrong and stupid and should be amended, that they dislike the verdict intensely but are compelled by their consciences to render that verdict and none other. The majority of justices would do the exact opposite: They would find some grounds, wherever needed, however thin and based on reasoning no matter how dubious, to enforce not the law but their personal morality. In this we sincerely, deeply desire the rule of men, not the rule of law. (Until, of course, we agree with the law and not with the men. In both cases, people ignore the legislature and act like it simply doesn't exist.)