Personal note: I have my own homegrown thoughts on empathy.
The reading on the aftereffects of his remarks has been in many sources and often with considerable insight. A solid overview of the winger extreme came from Slate's Dahlia Lithwick, who cited numerous examples of disdain hurled at Obama. As she puts it, "...Republicans have gathered up their flaming torches and raised their fists to loudly denounce empathy and all empathy-based behavior as evil."
She disagrees and continues:
When did the simple act of recognizing that you are not the only one in the room become confused with lawlessness, activism, and social engineering? For a group so vociferously devoted to textualism and plain meaning, conservative critics have an awfully elastic definition of the word empathy. It expands to cover any sort of judicial malfeasance they can imagine. Empathy—the quality of caring what others may feel—signals intellectual weakness, judicial immodesty, favoritism, bias, and grandiosityFrom his perspective as a neurologist and author, Salon regular Dr. Robert Burton looks at what makes for decent humans in terms of empathy. In his view, "Indeed, it's this wise approach to recognizing the limits of pure reason that we want in our justices, not folks with the blind and scientifically unjustifiable belief that they can keep emotions out of their decisions, or that empathy is somehow a dirty word. But then you need a heart to appreciate how empathy is the basis of good law."
...the opposite of empathy isn't rigor. It's pretty close to solipsism, or the certain conviction that everything you'll ever need to know about judging you learned from your own fine self.
A more legalistic view appeared in the Roman Catholic weekly America by Douglas W. Kmiec, Pepperdine University's chair and professor of constitutional law. He writes there is a place for the cold eye and one for empathy on the high court.
In terms of candidates for SC justices, "...talent pools give almost exclusive emphasis to the law’s doctrinal development--the “footnotes in a casebook” as the president put it, rather than the impact of those developments on individual citizens. A few theoreticians in the mix makes sense, but the Supreme Court is now entirely their domain. Empathy has a wider, more open-minded nature, asking how law interrelates with the larger culture."
He recalled that at law-school graduations, speakers have been known to quote the prophet Micah. In the King James version of the Bible, Micah 6:8, the key idea is that "...what doth the LORD require of thee, but to do justly, and to love mercy, and to walk humbly with thy God?"
Burton concludes that those criticizing Obama's call for empathy and understanding in a fair-minded and independent justice have erred. "By (their) rubric, there would be no Court seat for the prophet Micah," he wrote.
For those disgruntled outsider Republicans and right leaners, such strident criticism can be expected. Many continue to throw as many darts as possible at the President, hoping to draw blood and rouse more level-headed voter's animosity. On the other hand, some may be others out there who honestly believe that thinking like another and considering the effect of decisions on fellow humans is merely weakness — emotionally as well as intellectually.
The opposite of empathy isn't rigor
For them, the empathetic can feel the confusion behind their facade of harshness. This seems yet another example of the intolerance of ambiguity (one of my regular rants) that so typifies many conservatives and some libertarians. The need there instead is for a glib certainty, couched in terms of "it's only common sense" or "it's obvious." Those really are expressions of "I don't really have anything, but just take me at my word."
Let's me be plain, empathy is more work emotionally, intellectually and even legally. Rather than being a filter that excludes rationality, it is another layer. Compare it to reading or seeing some allegorical work, say, 2001: A Space Odyssey. We can enjoy and interpret movies and books on their face value and for the most obvious features. Yet, in the case of 2001, those with classical educations in Greek and Latin masterpieces will also have insights and even chuckles from the allusions.
So, I would hold that a justice who brings empathy into the high court along with the conventional traits is a valuable addition. I am with Mr. Obama on this one.
Tags: massmarrier, empathy, Supreme Court, Obama