Now that Sonia Sotomayor has been confirmed as the next justice of the Supreme Court (brava!), it's time to look at the much-maligned concept of empathy which has been at the heart of the hearings and ventings. As good a place to start as any, from the editorial in the (right-leaning) San Diego Union Tribune:
[A]lthough she had, in ruling after ruling in nearly 17 years on the bench, overcome her own sense of empathy and simply called balls and strikes - even one of the key senators who opposed her described her rulings as "mainstream" - still others accused her of being a "judicial activist" who ruled from emotion instead of reason.
What's the matter with empathy? Philosophically, lots - even if you could entirely feel your way into being another person, what would happen to you? or to the other? (Read Gadamer on the self-delusions of Einfühlung, and the wiser and more serious listening to others of hermeneutics.) Even without as daffy a concept as the Romantic notion of losing yourself in another, there are philosophical worries: just why isn't tout comprendre tout pardonner? But this wasn't a philosophical discussion. This was a discussion about law and the diversity of cases it is called on to determine. And about the strange balance between character and lack of character we seem to want in a judge. And of course also about gender and ethnicity: the phrase "ruled from emotion instead of reason" comes straight from the women-can't-participate-in-public-life playbook; it also got lots of play in natives-can't-govern-for-themselves situations.
I'm actually less interested in what President Obama meant by empathy (which seems to be the commendable sense that one should listen deeply to everyone and ever think of "the least of these"), than in what made the term available as a political football. In particular, what makes empathy seem the enemy of reason and impartiality? Could one not be empathetic (sic) with everyone, indeed, should one not? (In fact, I think what Obama is after is empathy for all, not just for the powerful and those who understand how the legal system works.)
The Republicans who voted against Sotomayor don't think you can be empathetic with everyone: for some reason they're convinced that empathy is restricted to people like yourself, and so an empathetic person will be unjust. A judge, thus, should lack, or have overcome, empathy.
There are certainly limitations to fellow feeling (try calling it that for a change), though one can certainly work on it. But it may be as naive to think it can be overcome entirely as to suppose it can be universalized. That's why there are no juries of one, and why higher courts have more than one justice.
But there is of course more to this than an abstract understanding of the partiality of every human being. For in a system in which 106 of the 110 past and present justices of the Supreme Court have been white men, justice looks like a white man - and that hasn't seemed a problem until recently because of white men's perceived capacity for impartial judgment. A distinctive capacity. Any of us who've done work in the disturbing history of thinking about difference know that western culture associates white men not with one kind of partiality among others but with with a unique capacity to achieve impartiality, rationality, universality. (I'll be happy to send you my essay on Kant, autonomy and the invention of whiteness.) Women and people of other than "white" color lack all of these, or, to put it less baldly, have other virtues - including empathy. This is why white men alone are thought to be able to represent everyone else.
All of these subcurrents would have been at work in the Sotomayor hearings even without Obama's talk of empathy (from which she prudently distanced herself - which of course made some people think she must be distancing herself from herself, dissembling or cold). Even without the "wise Latina" line, she would have been accused, directly or indirectly, of being constitutionally unfit to interpret the Constitution. And at least some of the worried white men - who surely never rule "from emotion instead of reason" - would have reported having a bad feeling, gut feeling, doubts about her.
But this is no time for gloating. It's probably too late for folks like Senator Sessions to understand that none of us is constitutionally just and impartial, but that democratic institutions can help us live with the fact, and even profit from it in progress toward true justice and impartiality. Forget empathy: let there be listening, and concern for the least of these, and true democracy. And Latina wisdom for all, along with every other kind of wisdom!
