I was going to make something of reader Andrew’s comment from the previous post–”This comment is so twisted and disingenuous it defies belief. Although par for the course for you.”–but it doesn’t seem worth it. Well, oh, alright, okay. It’s a slow night.

Let’s put aside twisted little ol’ me, ’cause invective is always a good way to score points when you don’t have a point. Second, let’s not point out, as commenter George did, that Bush 1.0 referred to Clarence Thomas as having empathy, or that Justice Alito said the same kinds of things about bringing his background to work in his confirmation hearing that Sotomayor said at Berkeley (I believe Glenn Greenwald was the first to point this out, but you can find it pretty much anywhere now). Third, we won’t argue about sociopaths being defined by a lack of empathy, because George did that, too, and all I was going to do was quote a long ‘graph from Dave Cullen’s recent book on the Columbine tragedy, a section on how what marked Eric Harris as a sociopath and allowed him to enjoy blowing his classmates away was his lack of empathy, but frankly I don’t relish opening that book again, so unpleasant was the subject matter. I ask unanimous consent that this be read into the record at a later time.

I don’t really know what I did to make Andrew think me twisty, but in his response to George, he asks, regarding the intertwining of empathy and sociopathy, “What does that have to do with what we are talking about. Are you really this stupid or are you pretending?” If George will allow me to take the liberty of responding in his stead, the reason it’s relevant is to point out that empathy is (as I said), a basic human trait, and that the lack of it is not to be advocated or desired. Thus, when the ‘Publicans attack Sotomayer for her empathy, they’re (1) asking the impossible, assuming she’s not nuts, and (2) holding her to the standards of a robot, which no judge is, or should be, and (3) are transparently trying to throw sand in the umpire’s (that is your) eyes. “Empathy” is not deciding cases because you like the plaintiff on a personal basis or think the defendant looks cute in those hot pants, instead of on the merits, but, among other things, being able to recognize the impact of the decisions that you make on others, and being able to see the issue at hand from their perspective as well as your own. The ability to do this does not mean you automatically agree with those others, but you understand them better than if you lacked empathy–their motives would be a mystery to you.

With Sotomayor, “empathy” is being used as something of a synonym for “experience.” This is what Sotomayor was getting at in the Berkeley speech:

Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown. However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care… Personal experiences affect the facts that judges choose to see.

In point of fact, personal experiences affect everything everyone sees, because our understanding of the world is formed by our encounters with it. Beyond that, having a certain range of experiences may allow you insight into an issue that someone who didn’t have that particularly range of issues might not be able to penetrate.

Parenthetically, one of my favorite comments in Ken Burns’ Civil War miniseries was something that Shelby Foote said about Abraham Lincoln (a lawyer, btw). Forgive me for paraphrasing–I’d have to put it on and keep watching until I found it to get it exactly right–that Lincoln had the ability to step outside of himself and see things from the perspective of others. “Very unusual and highly intelligent,” I recall Foote saying.

Still, let’s throw all of that side as we have thrown everything else aside in this post, and get to the root of where the lack of empathy can lead and why it is relevant. It leads to a justice who has never faced pay discrimination, or perhaps never even held a real-world job, deciding against Lilly Ledbetter on the ludicrous basis that was applied in that case. It leads to Plessy v. Ferguson and the concept of “separate but equal.” Only someone who had no sense of what it was to be in a subordinate position could write, as the court did in that case, “We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” It leads to Chief Justice Roger Taney writing in the Dred Scott case that black Americans were “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.”

Racism, sexism… These are the ultimate expression of someone incapable of perceiving the thoughts and feelings of others. The world is a mirror in which you face your own reflection and see nothing, or no one, else. That’s why the whole “empathy” outcry is a sham and why our discussion here of what empathy is and isn’t is completely relevant.

This entry was posted on Thursday, May 28th, 2009 at 11:24 pm and is filed under The Political Mindscape. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.