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Pulitzer Prize-winning columnist Ellen Goodman started her career as a researcher for Newsweek, and moved on to become a reporter for the Detroit ...
Read more about Ellen Goodman.
Pulitzer Prize-winning columnist Ellen Goodman started her career as a researcher for Newsweek, and moved on to become a reporter for the Detroit ...
Read more about Ellen Goodman.
In Praise Of Empathy
Ellen Goodman
BOSTON -- I've never been sure why Lady Justice wore a blindfold as
part of her permanent wardrobe. Yes, it's supposed to be a symbol of
impartiality. But it does limit her vision a bit.
So it is that I am watching the run-up to the nomination of a new Supreme Court justice with eyes wide open. We've already had pre-emptive strikes against three women on the media short list. Elena Kagan, Diane Wood and Sonia Sotomayor are getting the scary radical treatment without even getting picked.
More bizarrely, we have a full-throated campaign targeted against any candidate who might have a deep, dark secret buried in her resume. She may have, gasp, empathy.
The president has long talked about "that quality of empathy ... as an essential ingredient for arriving at just decisions and outcomes." In describing the qualifications for his first pick, he said, "I will seek someone who understands that justice isn't about some abstract legal theory. ... It is also about how our laws affect the daily reality of people's lives."
Who knew that he was waving a red flag before the red-staters? Now, a phalanx of horrified conservatives has trotted out, insisting that empathy is just a code word for the sentimental liberal bias in favor of underdogs over the Constitution.
The ever-combative Karl Rove dismissed empathy as the secret handshake connoting liberal activism. John Yoo, the man who justified torture for the Bush administration, sneered at the idea of a "Great Empathizer." Wendy Long of the Judicial Confirmation Network insisted that "Mr. Obama's gold standard is the very opposite of impartiality." It would usher in justices who decided the law by their mere "feelings."
You might say that they had an overly emotional response about emotion. Indeed, you might describe the passionate assault as an advance strike on any expected female nominee. Lady Justice notwithstanding, tradition sees the law as hard, rational and male, while empathy is soft, emotional, female and generally weepy.
But let us remember that empathy is not sympathy. It doesn't require that we take sides. Nor is it an emotional shortcut that upends all legal reasoning to declare a winner.
Empathy is rather the ability to imaginatively enter into the experience of others. As Harvard law professor Carol Steiker says, "We think of this as central to moral reasoning of any kind." How else to understand such moral basics as the Golden Rule?
The capacity to recognize another person's reality is not just liberal. The conservative jurist Richard Posner has described empathy as an important instrument in a judge's tool kit. It doesn't trump reason, it informs reason.
It may be easier to have empathy for someone like you, whether CEO or schoolgirl. After the recent and unsympathetic hearing of a case revolving around a girl who was strip-searched in pursuit of ibuprofen, Justice Ruth Bader Ginsburg remarked that she was the only one on the bench who knew what it was like to be a 13-year-old girl. But biography is no guarantee of empathy. Or its absence.
The irony in the attack on empathy is that the most dramatic flameout of a nominee was Robert Bork. The public as well as the Senate turned against Bork precisely because he seemed to regard the Supreme Court as nothing more than an intellectual chess game played with pawns, not people. Since then, conservatives have gone out of their way to describe their picks as people who understand the little guy as well as the Constitution.
Much was made of John Roberts' summer stint in a steel mill as if that gave him solidarity with workers. Samuel Alito was described as the son of working-class immigrants. And Clarence Thomas' boosters assured us that his experience with racial discrimination meant that he would understand others in the same boat. Circle false on your answer sheet.
The truth is that we want judges who "get it." The myth of justice as a matter of pure objective reasoning that could be meted out by a computer is just that, a myth. Check all those 5-4 decisions. Part of "getting it," says Susan Bandes, author of "Passions of the Law, is "the capacity to know what's at stake for all the litigants." In short, empathy.
Finally, as this debate goes on, it's worth asking what exactly would a judge without empathy look like? Bandes offers a name straight out of "Star Trek": "Spock."
Justice Spock? Science Fiction v. The Law? Remove your blindfolds.
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Ellen Goodman's e-mail address is ellengoodman@globe.com
(c) 2009, Washington Post Writers Group
This news arrived on: 05/21/2009
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Posted Comments:
05-27-2009 21:26
JCE wrote:
Obama choosing Sotomayer..........Brilliant! No better choice, and one that the conservatives will hang themselves on. Pure Genius!
05-23-2009 06:54
woscar wrote:
Empathy
Bobby Dee wondered if any cases could be cited where the SC lacked empathy. I can think of two recent ones, but I'm too sleepy to remember all the details. One involved a lady who worked at a Goodyear plant for 20+ years as a supervisor before she discovered she'd been paid far less than her male counterparts. She lost an appeal by Goodyear because she didn't make her claim within 6-months of the first occurrance. Of course, they wouldn't let her know the pay of her coworkers. If the judges had empathy, they would have seen that the case was stacked against her and let the 6-month rule begin when she discovered the difference.
A second case concerned a very young girl who was strip searched. I don't remember many of the details on that one, but Justice Ginsberg said she was the only one on the court who knew what it felt like to be a young girl. The court definitely needs more balance than it's had in the past. We're ignoring 50% of the population if she remains the only female justice.
I think the whole point is, "to walk a mile in the shoes of those affected by the sweeping decisions."
A second case concerned a very young girl who was strip searched. I don't remember many of the details on that one, but Justice Ginsberg said she was the only one on the court who knew what it felt like to be a young girl. The court definitely needs more balance than it's had in the past. We're ignoring 50% of the population if she remains the only female justice.
I think the whole point is, "to walk a mile in the shoes of those affected by the sweeping decisions."
05-22-2009 17:11
JCE wrote:
If the high judges hadn't had empathy, slavery would still be legal, mixed marriages would be illegal, and gays would all be dead or in prison. It isn't about feelings as much as it is about reality, especially when reality is not in line with the law, as is always the case with human and civil rights. Had justice truly been blind, and just paid attention to the law, we would never have had the fed, strayed so far from the constitution, the government would never have gotten so huge, and we wouldn't have committed war crimes. Blind doesn't see the whole picture, and that is vital for a judge, to see the whole picture, and how it all fits into reality, and how reality changes. The illegals situation is a prime example. At one time, it was good to have immigrants. Now it isn't. Where are our judges now? I often have to make decisions that are right, and I wish they weren't right. I have empathy, but seeing the whole picture, and what my responsibilities are, I do the right thing, and I live with the consequences, which are often unhappy people. You can't please everyone, but you can do what is right. All this talk over the law, and half the country is in favor of war crimes, and half of the country votes for criminals. Justice isn't working. We have a set of laws for the rich, for the politicians, and for the common people. We have had laws for the whites and nonwhites. A judge will get off driving drunk, not even be arrested, as will a politician. But you won't. Yet night after night, laws are broken, and cops turn the other way. Drunks leave the bar, and hookers and drug dealers operate with impunity. And that isn't right. Why have different laws for different people, and only enforce some laws, on some people?
05-22-2009 15:42
John Stout wrote:
I haven't seen name-calling yet. To suggest that because Obama wants someone who is empathetic because he believes that to be a problem on the supreme court is not correct. He never even insinuated anything of the sort. Empathy, as outlined in this story, is a substantive part of being an effective justice. To argue against empathy is to argue against a just legal system that works for all, and not just for the wealthy.
05-22-2009 15:11
BobbyDee wrote:
"In Praise Of Empathy":
Saying we need a S.C. Justice who has empathy presumes there is a problem within the Supreme Court. Can anyone who is an advocate of more empathy cite recent decisions of the Supreme Court where one might conclude there was an absence of empathy? Or could you cite emerging situations that will be resolved at that level where empathy (above and beyond the current parameters allow) would be called for?
Let’s please have an open, respectable dialogue sans name calling. There are differences in opinions and that is a good thing if we remain open and respond substantively. Name calling ends the exchange. What can you say when someone declares that all people of one party or another believe this way or that? It just sounds ….!
Let’s please have an open, respectable dialogue sans name calling. There are differences in opinions and that is a good thing if we remain open and respond substantively. Name calling ends the exchange. What can you say when someone declares that all people of one party or another believe this way or that? It just sounds ….!
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