July 16, 2009

Empathy is Not Prejudice

EMPATHY IS NOT PREJUDICE: it is the ability to imagine the point of view of the other. Without this ability to engage in thoughtful outreach, beyond one’s own personal realm of experience, and empathize with the human situation of the other, no jurist can begin to understand the human meaning of the arguments made in their court, and objectivity remains wholly beyond their reach. Empathy is not sympathy.

Sympathy means feeling what the other feels, experiencing grief at the other’s grief, loyalty in kind with the other’s loyalties, taking sides; empathy is the ability to comprehend the meaning of another’s experiences, and does not entail adopting or sharing the other’s views. Empathy for a judge means the ability to see how both parties arguing before a court could arrive there based on legitimate human experiences and assertions about the protections and provisions of the law.

For a judge to acknowledge that this is a necessary quality, that it is important to go beyond one’s own preferences and ideological leanings in order to hear the full breadth of the case of each party before the court, is to acknowledge that full faith in absolute impartiality is a sort of false pride in one’s own capacity which expands the possibility a ruling will in fact be biased and not impartial.

Acknowledging one’s humanity and personal experience as a judge is part of the process of transcending bias and getting to the most impartial rulings possible. On the first day of direct questioning, the second day of her hearings, Judge Sotomayor told senators, “We’re not robots who listen to evidence and don’t have feelings. We have to recognize those feelings, and put them aside.” This message is in fact in keeping with her complex arguments about the intellectual process of understanding and getting beyond bias and personal preference.

Conservatives are committing one after another ridiculous contortion in an effort to defame Judge Sonia Sotomayor as biased, racist and incompetent. Their efforts are contortions worthy of ridicule, because they are ignoring every element of fact and thought in order to extrapolate arguments they so deeply desire to be able to make, as if there were no room for humanity or for reflection in the process of thinking about law, and as if their own ideology were not a source of significant bias on their part.

On CNN, Alex Castellanos, a Republican strategist, repeatedly suggested the narrowest of intellectual fallacies, in line with the arguments of Sen. Jeff Sessions, claiming that Sotomayor repeatedly said that she meant to say the opposite of what she actually said. The truth of the matter is that she is trying to explain complex thoughts to individuals who are either recklessly or deliberately misreading her statements for their own partisan political reasons.

Castellanos and Sessions alike assailed Sotomayor for claiming that her statements about experience influencing judgment, or impartiality being in real terms an aspiration and an ideal were in fact statements in support of impartiality and objectivity in judicial thinking. They assailed her comments, because they either fail to understand or deliberately ignore the entire thread of her argument. By day three of the hearings, her second full day of questioning, Castellanos was charging that there was something “almost schizophrenic” about Sotomayor’s philosophical explanations of how awareness of the meaning of personal experience leads to enhanced impartiality.

There is a coordinated effort ongoing among Republicans in the Senate to argue that “empathy” is contrary to judicial impartiality, because they assume the conversation is about sympathy. They assume that by attacking Obama has promoting empathy, or judges aware of what is in their hearts, they can stain him with the charge of prejudice, bias, even make him seem suspiciously racist.

The arguments are being made for one reason alone, to promote an ideological view of judging, which holds that any deviation from the conservative agenda favored by those making the argument is “activism” that threatens to undermine the American Constitution and strip people of their rights. Of all the Republican statements and questions so far put to Judge Sotomayor, only Sen. Orrin Hatch (R-UT) has really gone to specific points of law and specific judgments outside the Ricci case. The Ricci case is eye-catching, but involves virtually no “innovation” on Sotomayor’s part and thus no real controversy, as a matter of law. It is being used in order to paint Sotomayor as a Hispanic woman with ethnic bias, who is trigger happy about affirmative action.

Even Sen. John Cornyn (R-TX) spent most of his time questioning Sotomayor about her personal opinions on the philosophical question of “empathy” or of ethnicity as foundations for making rulings. He even went as far as to ask her if she believed that “physiology” played a role in judges’ manner of judging, referring indirectly to race and sex. She essentially spent most of her exchange with Sen. Cornyn explaining that she does not judge based on personal preferences, emotion or ethnicity.

What Sotomayor has time and again expressed is her view, informed by long years of experience as a lawyer and federal judge (she has more federal legal experience than any nominee in 100 years and more overt federal judicial experience than any nominee in 70 years), that most people struggle to even become aware of their own biases. Her concern with experience and awareness of discriminatory behavior is rooted in her experience that in fact most people do not make enough of an effort to transcend their biases, and this negatively impacts the kind of rulings made by many judges.

She has suggested that it is vital to understand one’s own experience and one’s own context, in order to look beyond one’s limits and develop genuine empathy for all litigants who come before her, to see that on some level there is meaning to their experience of the facts of the case. Her argument is not that empathy allows her to make biased rulings, but thatexperience of the need for broader empathy among people, in general, allows her to transcend her personal experience and give equal weight to the arguments of all before her.

It is not that complex an argument. But there is an ideology of “conservative” judging, which deviates from true conservatism and expects that conservatism (read: moderation) is a virtue that all judges should have, and that therefore any judge who is not determined to produce conservative rulings (read: in line with the “conservative” agenda) is somehow fundamentally flawed and can be opposed on those grounds. In order to support this view, a rigid standard of automatic ruling is applied, where certain types of arguments should win, not because of the merits of a case, but because they are aligned with a specific ideology.

Sessions and Castellanos appear to argue that law is “mechanical”, that judicial rulings are “predictable”, an essential negation of the logic of maintaining an independent judiciary. Sessions and Castellanos—and others making similar arguments against Sotomayor, or against Obama’s philosophy of the judiciary—, while they cast their criticisms in the mold of ideological conservatism, actually appear to be arguing that the only qualification for service on the Supreme Court is something akin to the ancient doctrine of papal “infallibility”.

This idea is reflexive; it works for segments of the political spectrum that desire relentless proof of the security of their ideas by way of the elimination of rival ideas. The mechanical judiciary argument is diametrically opposed to the idea that three separate branches of government check and balance each other’s power. The mechanical judiciary view holds that the judiciary must be either a rubber-stamp for the legislature or the executive.

The Sessions and Castellanos line, that all judges must be absolutely mechanical about the practice of law, use zero interpretive capacity and never disagree with ideological conservative positions, is 100% contrary to the US Constitutional system. Their line of attack is anti-democratic and is rooted in arguments that emerge from facile devotion to the logic of power rooted in old-world absolutist systems. (It should be noted that the Vatican threw out the doctrine of papal infallibility, because it had come to be seen as nothing more than an ill-conceived excuse for abuses and even heresy.)

It is important to note that increasing numbers of legal observers and Constitutional scholars are coming to view the Roberts Court as “activist”, in that Chief Justice Roberts has in fact been enforcing a devotion to a political philosophy that he had pledged would not influence his rulings. Jeffrey Toobin, renowned legal scholar and CNN judicial analyst, wrote in a May edition of the New Yorker magazine:

In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.

Toobin was quoted during Monday’s opening statements, specifically in order to illustrate the concerns of some Democratic senators that the current Supreme Court has been stocked with ideological conservatives who do favor the idea of an activist conservative judiciary, despite their protestations in confirmation hearings that they would not.

The judiciary exists, and in the American system is independent of the control of the executive, precisely because no human being is infallible. This is why there are so many levels of judicial review, courts of appeal and opportunities to contest finalized legal rulings. This is why there are juries. And this is why on the final court of arbitration, the last appeal, the forum for final decisions on matters of law, there are nine justices, and not one.

Conservatives have reflexively sought to paint Barack Obama as a hardline socialist liberal who has no regard for conservative views, business interests, or limitations on government authority, when in fact, though a tested progressive in politics, Obama has consistently erred on the side of restraint and moderation. The prejudice that Obama favors biased government enforcement of a socialist ideology is influencing Republican arguments in the Sotomayor hearings, and has caused Republican senators to almost completely ignore her judicial record.

In fact, no serious challenge to her confirmation has been made by any Republican on the Senate judiciary committee, because so few points of law have actually been discussed. While attacking Obama’s interest in empathy as an emotional distraction that undermines impartiality, Republican senators have obsessively questioned Sotomayor on her sympathies, her views of personal experience in judging, her view of women in the judiciary, her “temperament” and her attitudes. They have entirely glanced over her judicial record, which by most accounts is moderate and shows no overt signs of ideological leanings.

What they have failed to see is that they are devoting their valuable questioning time to beating a dead horse: they want to establish that Obama’s mention of “empathy” means he favors judges who would be biased in favor of liberal ideology. They ignore the fact that for both Obama and Sotomayor, based on their own extensive comments on the issue, empathy is a quality that allows a judge to rise above temperament, to rise above politics, and to judge the facts, in terms of law, for the good of the Constitutional system.

The fact is, empathy as explained by both Obama and Sotomayor is a moderating virtue, a quality of intellect that allows for better understanding of the consequences of one’s actions as a judge.

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Originally published July 16, 2009, at CafeSentido.com