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May/09

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Underdogs and empathy

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Obama’s infamous “empathy” test for judges:

we need somebody who’s got the heart — the empathy — to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old — and that’s the criteria by which I’ll be selecting my judges.

has triggered a debate about the appropriate role for empathy in judicial decision-making, with conservatives arguing—rightly—that a judge’s overriding duty is to apply the law and let the chips fall where they may.  (In a large number of cases that come before courts, things are not that simple, of course.  The facts fall between legal categories and judges have to decide how to extend existing legal rules to cover them.  This activity does come close to making “policy” as Sonia Sotomayor put it, though there are better and worse ways of devising those new rules, and judges should try to understand the effects of a new legal regime on all affected parties.  Nevertheless, the idea that judges should only apply rather than make the law is an important aspirational fiction that we should not cast aside.) 

“Empathy” is a code word, naturally, for privileging the usual suspects: the alleged victims of American classism, racism, sexism, and homophobia.  (Glenn Greenwald notes that Samuel Alito paraded his empathy during his confirmation hearings.) 

But why accept the conventional wisdom about who deserves empathy and who doesn’t.  Here’s some hypothetical litigants and affected parties who probably wouldn’t meet the Obama empathy test but who should (regardless of their actual legal rights in a dispute): 

–A landlord trying to evict a deadbeat tenant.
–A landlord trying to evict a tenant who has trashed his property.
–Taxpayers who will be forced to fund whatever new welfare entitlement or reprieve from responsibility that Obama wants to cook up for his “young teenage mom.”
–The children of future “young teenage moms” who will be produced at an even higher rate thanks to the new welfare entitlement.
–The victims and neighbors of some of those children of future welfare-enabled teenage moms.
–A business owner who can’t make a go of it thanks to onerous new taxes or regulations imposed to satisfy an empathy lobby. 
–His employees.
–Chrysler’s secured creditors who assumed on the basis of settled law that they would have priority in bankruptcy court.
–Intending immigrants waiting patiently to enter the country legally, while the courts block deportations of illegal aliens. 
–The casualties of affirmative action policies, as conservatives have long pointed out, including the successful New Haven firefighter test-takers. 

The received wisdom about who the underdogs and overdogs are has been formed over decades by the left.  But the assumption that underdogs—usually conventionally defined–occupy a special place of virtue is probably also a legacy of Christianity, as Nietzsche would have it, one that, combined with knee-jerk leftism, can have its downsides.

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25 comments

  • Tony · May 28, 2009 at 6:12 am

    “But the assumption that underdogs—usually conventionally defined–occupy a special place of virtue is probably also a legacy of Christianity, as Nietzsche would have it, one that, combined with knee-jerk leftism, can have its downsides.”

    Leftism = Christianity – (dogma – guilt – redemption)

  • JohnC · May 28, 2009 at 7:05 am

    “Empathy” is a code word, naturally, for privileging the usual suspects: the alleged victims of American classism, racism, sexism, and homophobia.

    Perhaps. But in a judicial sense it can also mean:
    1. There are two-sides to every story, including all the instances mentioned above.
    2. A person’s background and ideology disposes a judge to automatically feel greater sympathy for a particular side.
    3. Empathy then means questioning the results of such dispositional sympathy, and thereby properly weighing the arguments of the other side, ultimately resulting in a more dispassionate application of the law.

    There is considerable evidence, including the case specifically discussed by Greenwald, that this is precisely Sotomayor’s methodology.

  • rob · May 28, 2009 at 8:05 am

    “Empathy” is a code word for “Justice is not blind,” that equal justice will be dispensed more equally to some than to others.

    Not surprising though; Justice is the interest of the stronger, right?

  • JohnC · May 28, 2009 at 8:06 am

    I feel I should add that the discussion is greatly deformed by the crudification of language resulting in the majority of people unable to understand, let alone articulate, the difference between sympathy and empathy.

  • John · May 28, 2009 at 8:48 am

    John C:

    “A person’s background and ideology disposes a judge to automatically feel greater sympathy for a particular side.”

    Given Sotomayor’s background and ideology, which side in the cases Mac Donald mentions above do you think she has greater sympathy for?

    Do you think that she will “question the results of such dispositional sympathy”, or do you think she will rule whichever way supports her allies? Her record already shows the answer.

    A judicial conservative is capable of saying “I disagree with this law, but I’m going to uphold it anyway, because that’s the law”. I have never seen a judicial liberal capable of making such a statement.

  • seedeater · May 28, 2009 at 9:38 am

    “But the assumption that underdogs—usually conventionally defined–occupy a special place of virtue is probably also a legacy of Christianity…”

    I don’t see it. Exodus 23:3 and Leviticus 19:15 both admonish judges not to favor the poor. That suggests that (1) the temptation to cut the underdog some slack, even at the expense of justice, long predates Christianity; and (2) Christianity’s parent religion regarded it as a bad thing.

  • JohnC · May 28, 2009 at 11:52 am

    You misunderstand my point. Sympathy is an admirable human quality but cannot be a basis for valid judicial decision-making, since it implies an emotional override of evidence, argument and precedent. Empathy on the other hand is a necessary component of judicial temperament, whether the judge is liberal or conservative.

    “Do you think that she will “question the results of such dispositional sympathy”, or do you think she will rule whichever way supports her allies? Her record already shows the answer.”

    Have you actually read the Greenwald post to which Heather linked? The case discussed seems to utterly contradict your assertion. Sotomayor’s record seems to show a technically sound adherence to case law and precedent that places her very much in the mainstream of American jurisprudence.

  • JohnC · May 28, 2009 at 12:29 pm

    @seedeater The contention was that underdogs “occupy a special place of virtue” in Christianity, which is rather more than simply cutting the under-privileged some slack.

    The Beatitudes were indeed a deliberate rhetorical inversion of accepted Judaic values, and clearly state the moral/spiritual superiority of the downtrodden. Unsurprisingly, they have been appropriated thoughout history by peoples who see themselves as oppressed, and their supporters. Yes, the sentiments were not unique to Jesus, but their formulation in Matthew is particularly striking and undergird much modern liberal theology.

  • John · May 28, 2009 at 2:34 pm

    Greenwald is hardly an unbiased observer. His first sentence starts: “The same right-wing extremists who drove the country into the ground…” Just because he says that she is unbiased doesn’t mean that she is.

  • John · May 28, 2009 at 3:42 pm

    I would also point out that someone who belongs to an organization called “The Race” is probably not going to be unbiased.

    http://www.nclr.org/

  • Missy · May 28, 2009 at 4:40 pm

    Deadbeat tenants need to be listed on NoPayTenants.com

  • JohnC · May 28, 2009 at 8:12 pm

    @John Who’s playing identity politics here?If you believe Sotomayor is a “biased” judge, then there should be plenty of evidence from her 11 years on the Second Circuit. You may want to make a start here (it’s only 500-odd pages):
    http://documents.nytimes.com/selected-cases-of-judge-sonia-sotomayor#p=1

    Scanning NRO’s Corner, however, I note there is also a paucity of substantive comment, just more silly hand-waving, including a preposterous discussion about pronouncing non-Anglo names.

    And as Kevin Drum noted on his blog:
    “Most normal people think empathy is a good thing, not a code word for the dictatorship of the proletariat.”

    I don’t know why the conservative movement is allowing itself to be led into ever-deeper electoral oblivion by the strategists now in the West Wing, but on present indications things look like they will get worse before they get better — 2010 is looking pretty grim for the GOP.

  • Donna B. · May 28, 2009 at 9:55 pm

    I agree with John C that empathy and sympathy are often confused. What worries me is that Obama does not clearly understand the difference. I have always wondered why he’s been proclaimed to be so intelligent.

  • rob · May 29, 2009 at 6:28 am

    @JohnC

    “Empathy… is a necessary component of judicial temperament…”

    How so?

  • JohnC · May 29, 2009 at 7:20 am

    @rob Because it is essential in truly understanding both sides in an argument. The fact that justice should be blind and that it is also a human process are not mutually exclusive propositions, as anyone who has read a few of the landmark judgments will know.

  • Ivan Karamazov · May 29, 2009 at 9:00 am

    If Obama and Sotomayor types would simply “restore science to its rightful place”, as Obama promised to do, then one of the major objections to Sotomayor ( namely what her ruling in the Firefighter case implies about her predispositions ) would vanish. Instead of “disparate impact” needing remedy, they would see “expected impact” of the cognitive-based test results required for higher Firefighter office, and further real-world confirmation of the Race-IQ data. No litigation necessary.

  • Thrasymachus · May 29, 2009 at 10:29 am

    Liberation theology, or the fetishization of the poor in general, comes from selectively quoting and twisting a few quotes from the Bible. Read the whole thing and you won’t find it.

    As for the politics of the Sotomayor confirmation, dammit some backlash is long overdue. All the success of conservative politics in the last 50 years was based on backlash. “Compassionate” conservatism has virtually no track record.

  • meanmaththeacher · May 29, 2009 at 11:26 am

    @JohnC “Because it is essential in truly understanding both sides in an argument.”

    And the “feelings” of the litigants has to do with interpreting the law in what way?

  • The Kat · May 29, 2009 at 1:32 pm

    @Thrasymachus
    That’s not entirely true. You definitely find a favorable attitude towards the poor and the downtrodden in the New Testament and most specifically in the words of Jesus. But you are correct that it is almost entirely absent from the Old Testament. I would argue that you can see that difference reflected in modern day Judaism (Old Testament) and Christianity (New Testament) today.

  • enluch · May 29, 2009 at 3:32 pm

    As JohnC offered, there is a distinctive difference between being sympathetic to someone as opposed to having an empathy. The former stems from the fact that the sympathizer has a deep concern about somebody else’s feelings, even though such emotion can by definition be recognized, while, the latter (empathy) requires the individual to basically put himself in someone else’s shoes in order to obtain a shared understanding of his emotions. So the empathy is a fashion in which one can understand a foreign feeling through perceptive examination of that emotion. In other word, sometimes, understanding comes from experiencing an emotion.

  • KG · May 29, 2009 at 6:49 pm

    I’m an attorney. And there is absolutely a place for empathy in judicial decision making. There are cases that raise equitable issues and necessarily require judges to fashion fair remedies based on the facts and circumstances of the case. It’s not as easy as “this is what the law says and so this is what will happen.” The ability to recognize how the application of the law – and of the court’s discretion (and a lot of decisions are left to the “sound discretion of the trial court”) – affects real people in everyday life. Empathy is not a bad thing, in these contexts, and without it, you could end up with miscarriages of justice.

  • Thrasymachus · May 29, 2009 at 11:41 pm

    The Kat :

    The Kat
    @ThrasymachusThat’s not entirely true. You definitely find a favorable attitude towards the poor and the downtrodden in the New Testament and most specifically in the words of Jesus. But you are correct that it is almost entirely absent from the Old Testament. I would argue that you can see that difference reflected in modern day Judaism (Old Testament) and Christianity (New Testament) today.

    I’m reluctant to go head to head on Bible quoting but if anything there is a more concern for the downtrodden in the Old Testament. It is mentioned a few times in a perfunctory manner in the New Testament. It is understood to be an obligation to provide charity to the poor but it is not a big deal. The idea that Christianity revolves around the poor is quite a stretch.

  • meanmathteacher · May 30, 2009 at 4:20 am

    @KG
    “I’m an attorney”.
    I’m sorry.

    The goal of the courts is impartiality. The goal of the attorney is to win the case. It is easier to win when you can get the judge and/or jury to “feel your pain”. That is the miscarriage of justice.

  • Soul Searcher · May 31, 2009 at 5:45 pm

    Does anyone find it surprising that the New Testament, aside from the Gospels, is composed largely of epistles of Paul, which were written at a time when evangelizing Christians were trying to appeal to upper-class and very materialist Greeks (and a few Romans as well)? The erudite readers of this blog will of course be familiar with the contempt the Romans had for the Greek cities of the East, at least until the time of the final sack of Carthage. Notice to the contrast the weak and effete doctrines of the New Testament, with its ambiguous conditions for salvation, compared to the demanding & harsh rules of YHWH and Jehovah, the God of desert peoples. Convenient how Paul has a vision from God that frees Gentiles to partake in foods previously regarded as impure…

    On reflection, I think some of that ‘weakness’ underlied my decision to eventually leave the Church in my late teens. One of my favorite stories of the Old Testament was the song of Deborah, also the tale of Jael, the wife of Hibera, who knelt by the tent of an enemy general of the Caananites, and drove a spike into the side of Jabin’s skull to deliver Israel from its enemies. How bad-ass, how inviting to the boyish mind! The Old Testament is replete with stories like this, from the tragic tale of Absalom and David to Jezebel’s seduction of Ahab and her exciting demise by defenestration. What compares in the New Testament other than punishments Revelations promise us, whose immediacy can always be postponed? As I grew older though, I learned that the adults only listened to very similar-sounding sermons that always ended with requests to “take Jesus into our hearts” – certainly not enough fire and brimstone for my taste, to continually instill the needed “fear of God” into my soul to continue to brave the inconveniences of faith. This Youtube clip of the movie Polyanna is hilarious and illustrative of the kind of sermon I enjoy, but where is that kind of righteous moralism in America today?

  • Missy · June 2, 2009 at 12:24 pm

    Have you checked out NoPayTenants.com?

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