Alex Blaze

What the world needs now is empathy

Filed By Alex Blaze | May 13, 2009 11:30 AM | comments

Filed in: Politics
Tags: Barack Obama, Dahlia Lithwick, john yoo, judge, law, legal, rightwing

I didn't think that the right-wing would actually declare war on "empathy," but, as Dahlia Lithwick points out, they have, mainly because Obama has said that empathy is a characteristic to look for in judicial nominees and the GOP has already decided to oppose anyone he nominates.

in his first column for the Philadelphia Inquirer, John Yoo denounces empathy, which makes sense considering he's a torture-loving sociopath. He seems to be under the false impression that empathy on the part of a judge means that she bursts out in tears and rules in favor of members of oppressed group because she cannot control herself, but Lithwick explains where he's wrong:

What a tragically crabbed worldview one must have to believe that empathy means being sensitive only to "groups A, B, and C" because they share certain features or beliefs with you. That isn't empathy--that's bias. True empathy turns that notion on its head.[...]

Empathy means being impartial toward all litigants without being blind to the consequences of your decisions. You can send up such concerns as gooey judicial sentimentalism, unmoored from any fixed legal principle. Or you can admit that judging requires acts of judgment beyond the mechanical application of law to facts and that it's best for judges to know when the mechanical act of deciding cases gives way to ideology and personal preference. Empathy isn't sloppy sentiment. It's not ideology. It's just a check against the smug certainty that everyone else is sloppy and sentimental while you yourself are a flawless constitutional microcomputer.

I would recommend reading Lithwick's full post over at Slate, because her argument about empathy, which applies to liberal legal interpretations generally, makes a lot of sense and we're going to have to be clear about why judges ruling in our favor isn't "judicial activism" as our movement marches forward.

Right-wingers do love to make the argument that their interpretations of constitutions are better because they're "literal," but all interpretation of any text always comes from a certain perspective. Their idea that they're the only people who can best interpret law because they keep other people's perspectives out of the interpretive process is inherently flawed - if you steadfastly oppose considering other people's points of view than you're only left with your own. Which, by definition, is more biased than trying to consider where the relevant parties are coming from.

While a war on empathy should be expected from conservatives since "tough love" and "me first!" is pretty much the heart of their ideology, it's always substantially more annoying when it comes from the LGBT community. What are we asking for when we want straight politicians to legislate or judges to rule in our favor? We're asking that they try to see things from our perspective as well, and take that into consideration while making a decision.

So, yes, if Obama's going to look for people with empathy as he defines the word in his book, then bring it on. The world could definitely use a little more empathy.

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Don Sherfick Don Sherfick | May 13, 2009 1:47 PM

".....we're going to have to be clear about why judges ruling in our favor isn't "judicial activism" as our movement marches forward."

How very, very true. But certainly easier said than done. In our 15 second sound bite culture, simplistic slogans like "judges shouldn't be making laws, just interpreting them" is deeply ingrained and resistant to discourse. The best hope, I think, lies in trying to give as simple an explanation as can be mustered about how one ought to go about interpreting and applying equal protection clauses, which is really what those awful "activist" judges are doing but getting blamed for "making law".

There's a reason why when the polling question [to however many households in two days.....ooops, wrong thread!] is "should gay and lesbian couples have the same rights as heterosexual married ones?" produces a different and more favorable result than "should marriage just be limited to one man and one woman?". We just need the perseverance to figure out why and then go forward in the education process.

That makes sense to me, Don. I think that Obama was trying to do that with "empathy," make a soundbite for liberal legal interpretation. And that's probably part of why the rightwing jumped all over it to nip it in the bud: when he brings it up in the future, people are going to just assume he means judicial activism in favor of undeserving minorities, performed by hysterical women on the bench who are in over their heads.

That's if what they're doing actually works in the end. But I do think that the left generally overestimates the ability of the right to fool people.

Are we shocked that John Yoo has a different version of "empathy" than most of us do? Most of us don't think torture is an admirable thing either, but Yoo's perfectly okay with it.