For the past few weeks, we've heard a lot of debate about whether constitutional law can possibly survive close contact with the concept of empathy. But after spending the afternoon at the Sotomayor hearings, listening to senators left and right prattle about empathy and its relationship to justice, I have another question: Can the concept of empathy survive close contact with constitutional law? I ask because empathy has become the watchword of these hearings—and in the process it is getting battered, vilified, and badly distorted.
The empathy war has its roots in a statement Barack Obama made back in 2007, when he described the kinds of jurists he planned to appoint: "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom," he said. "The empathy to understand what it's like to be poor or African American or gay or disabled or old." Obama's statement contained one big mistake: using the word "heart" in conjunction with empathy. This made empathy sound mainly emotional and therefore suspect. Of course empathy can be emotional, but, in a constitutional democracy, it is much more than that. One of the primary roles of the constitution is to hedge against the possibility of majoritarian tyranny by protecting the rights of unpopular groups. This is not a matter of sentiment or good will; it is a fundamental matter of morality and the underpinning of a free, liberal order. We insist on these rights for others largely because of the human capacity to put ourselves in someone else's shoes—to imagine what it would be like if the natural lottery had placed us in circumstances different from our own. Without empathy, neither our constitution nor the body of legal interpretation that has sprung up around it over the past two centuries could possibly exist in anything like its present form.
But this afternoon the Senate Judiciary Committee managed to reduce empathy to a caricature of its true meaning. Here was one of Republican Senator Jon Kyl's questions to Sotomayor: "Have you always been able to have a legal basis for the decisions that you have rendered—and not have to rely upon some extra-legal concept, such as empathy or some other concept other than a legal interpretation or precedent?" Sotomayor must have known that Kyl had set up a ridiculous dichotomy—just minutes before, in response to a question from Russ Feingold, she had actually issued a rather passionate defense of empathy in judging—but still she played along, responding, "We apply law to facts. We don't apply feelings to facts." Both the question and the answer were absurd. Empathy is not the opposite of law, nor is it a simple matter of feeling or emotion; it's a cornerstone of both human reasoning and the constitutional principles we call on Supreme Court justices to interpret. But during this exchange, Kyl and Sotomayor effectively collaborated to render the concept a sort of legal slur.
Then there was Lindsey Graham (whose spectacularly obnoxious half hour of questioning included condescending demands that Sotomayor define simple legal terms and even at one point that she repeat from memory the phrase from her infamous "wise Latina" speech which she had already renounced). The South Carolina Republican didn't actually use the word "empathy" but it was clear enough what he was referring to when he denounced one school of legal thinking as "kind of touchy-feely stuff." Graham seemed oblivious to the irony of his line of questioning when, in a later effort to get Sotomayor to acknowledge the grave threat posed by Al Qaeda, he asked, "What would a woman's life be in their world, if they can control a government or a part of the world?" Is there any way to answer that question without drawing on empathy? Graham was essentially asking Sotomayor to incorporate a sense of empathy for the potential victims of terrorists into her understanding of the law. And why shouldn't he? Drawing on reasoning skills like empathy is part of what judges do.
Conservatives also seemed oblivious to the contradiction inherent in their two principal lines of attack. On one hand, they wanted to demonize judicial empathy. On the other hand, harping on Sotomayor's (indefensible) comment that a "wise Latina" could reach a better decision than a white male, they took pains to argue that any judge of any background could reach an equally fair decision in any given case. But both these things cannot be true. If judges are forbidden from using empathy—if they are forbidden from putting themselves in someone else's shoes for the purpose of determining how the application of a constitutional principle affects all Americans, including groups to which they do not belong—then they are likely to be excessively swayed by their own biases. Empathy can compensate for a lack of diversity, or diversity can compensate for a lack of empathy—but without either, our judicial system is in trouble.
Democrat Chuck Schumer began his remarks by noting (promisingly) that he thought empathy was being defined incorrectly. But he then proceeded to simply make things worse. Trying to be helpful to Sotomayor, he sought to distance her from the concept of empathy altogether. He ran through a series of cases in which Sotomayor had voted against sympathetic parties—for instance, relatives of those killed in the 1996 TWA crash off of Long Island—then went on to triumphantly declare her unencumbered by empathy: "The only point I'm making here, if some are seeking to suggest that your empathy or sympathy overrules rule of law, this is a pretty good body of law to look at." Why would Schumer conflate "empathy" and "sympathy"? Sympathy is a narrow personal emotion; empathy is a principled tool for analyzing the world around us. And why would he play into conservative hands by implying that judicial empathy is something to be scorned rather than something to be celebrated?
Overall it was a good day for the Democrats. Sotomayor made no missteps and said nothing controversial. The most dramatic thing to happen this afternoon took place not at the front of the room but a few rows from my seat in the back, where a burly man with a thundering baritone erupted suddenly into an anti-abortion tirade ("Filibuster Sotomayor, she's a baby killer!") before being dragged out of the room by security. And the nominee's biggest mistake was referring to Washington's baseball team as the Senators. In short, Sotomayor got a win today. Unfortunately, empathy lost in a big way.
Today at TNR (July 15, 2009)
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