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The Empathy Trap

May 29, 2009

In arguing that Republicans in the Senate should oppose the nomination of Sonia Sotomayor to the United States Supreme Court, the political right has made much of Obama’s suggestion that empathy is the signal quality he looked for in a nominee. Michael Gerson at the Washington Post urges Congressional Republicans to oppose the nominee despite the obvious risk that their criticism of her will likely alienate Hispanic voters. His rationale:

The principle is simple: A court should be a place where all are judged impartially, as individuals. The Obama/Sotomayor doctrine of empathy challenges this long-established belief. It is not a minor matter. […]

By Obama’s empathy standard, Sotomayor is a natural choice. She has argued: “The aspiration to impartiality is just that — it’s an aspiration because it denies the fact that we are by our experiences making different choices than others.” And these culturally conditioned choices are not just “different.” She contends that a “wise Latina woman” will “more often than not reach a better conclusion than a white male who hasn’t lived that life.”

None of this is particularly controversial at Obama’s University of Chicago or Sotomayor’s Princeton. In elite academic settings, it is commonly asserted that impartiality is not only a myth but also a fraud perpetuated by the privileged. Since all legal standards, in this view, are subjective and culturally determined, the defenders of objectivity are merely disguising their exercise of power. And so the scales of justice — really the scales of power — need to be weighted by judges to favor the “weak” and the “powerless.” Emphasis added.

Empathy can be a negative quality in a judge, but only if it is applied in the simplistic manner described by conservatives bent on undermining Obama and his nominee. The consistent repetition of the accusation that Judge Sotomayor is an empathic judge and will therefore make her decisions based on the relative power positions of the parties before her–that she will always back an individual plaintiff against a large corporate defendant, for example–is demonstrably false in her case.

More broadly, conservatives commonly mischaracterize the application of the law as an entirely mechanistic and analytical exercise devoid of personal bias or emotion. As David Brooks points out in his commentary in the New York Times, that is not, and can never be, the case. While justice should indeed be blind and impartial, the judicial task of comparing the facts to the law requires a combination of objective and subjective determinations. But whenever subjective factors are mentioned, conservative commentators and critics write things like Gershon does here: “Since all legal standards, in this view, are subjective and culturally determined, the defenders of objectivity are merely disguising their exercise of power”. It’s a sort of “slippery slope” argument. That once any subjective factor is introduced into the jurisprudential process, the application of justice is therefore corrupted and subject only to the whims of the judge. Nevermind that the law commonly requires us to make subjective determinations: we tell jurors to use their common sense and life experiences when determining the facts of a case in which they are sitting in judgment; we use a “reasonable man” standard in the law to determine if any particular action or failure to act was a legally relevant violation of a duty; we use “reasonable suspicion” as the standard the police must use before engaging in what is called a “Terry” stop of potential criminal suspect… all require the application of subjective determinations by the decider-of-fact in order to accurately apply the objective criteria of the law. The quality of empathy in a judge, far from rendering her unable to objectively apply the law, actually allows her to do so more completely and effectively…a fact that is traditionally and explicitly recognized in the law.

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