The Empathy Code: Judging, Judgment, and the Next Supreme Court Justice

Supreme Court nomination season is more rife with code words and
hidden references than a Dan Brown novel. "Strict constructionists"
and "activists judges" are just some of the most commonly used
double-entendres in circulation.

But perhaps the most unexpectedly buzzed-about word in recent weeks is "empathy." In his first remarks on the retirement of Justice David Souter, President Obama said:

"I will seek somebody with a sharp and independent mind and a record
of excellence and integrity…someone who understands that
justice isn’t about some abstract legal theory or footnote in a case
book.  It is also about how our laws affect the daily realities of
people’s lives — whether they can make a living and care for their
families; whether they feel safe in their homes and welcome in their
own nation.

I view that quality of empathy, of understanding and identifying with
people’s hopes and struggles as an essential ingredient for arriving as
just decisions and outcomes.  I will seek somebody who is dedicated to
the rule of law, who honors our constitutional traditions, who respects
the integrity of the judicial process and the appropriate limits of the
judicial role.  I will seek somebody who shares my respect for
constitutional values on which this nation was founded, and who brings
a thoughtful understanding of how to apply them in our time.

According to conservative pundits, empathy is not a word meaning "understanding, being aware of,
being sensitive to, and vicariously experiencing the feelings, thoughts, and
experience of another…" but instead a coded dog whistle to his
pro-choice, pro-gay rights base.

Of course, it wasn’t actually a dog whistle of any sort, because Obama used the
oft-echoed word in a speech to Planned
–no secret connotations there. Explaining why he voted against
confirming Justice Roberts, here’s
what Obama said

Justice Roberts said he saw himself just as an umpire, but the issues
that come before the Court are not sport, they’re life and death. And 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. Alright?

As Wonkette
reported in typically NSFW/hilarious language
, "empathy" more
than any other word sent a flock of right-wingers into fits of rage. Alabama
Senator Jeff Sessions said he "didn’t understand" empathy and he
assumed it meant personal predilections–while National Review writer Thomas
Sowell wrote that Obama’s use of the word led down a
slippery slope to… Hitler-esque fascism. Literally.

Right, because Hitler had too much
for the non-Aryans in Europe. That
was his problem.

Finally, to cap the trifecta of empathy-naysayers, GOP party chairman Michael
Steele ranted:

I don’t need some judge sitting up there feeling bad for my opponent
because of their life circumstances or their condition. And short changing me
and my opportunity to get fair treatment under the law. Crazy nonsense
empathetic. I’ll give you empathy. Empathize right on your behind. Craziness.

What’s most amusing about all these reactions is each critic has implied that
the hypothetical empathetic justice would rule against his interests, rather than empathize with him.  It’s my guess that should Sessions, Sowell or
Steele actually ever find themselves before a judge, they would hope the judge
possessed empathy in heaps, seeing the parties involved as human beings with
real stakes rather than merely players in a legal game.

From a linguistic and humanistic perspective, this word-bashing party is a real
pity, because "empathy" has one of the nicest definitions in the
English language. It’s not the condescension-laced "sympathy." No,
empathy means transcending our basic human selfishness, our limited
perspective, and seeing the world through others’ eyes to the very extent of
our capacity. To approach social problems with a truly empathetic outlook is
vital–and to approach our neighbors, relatives and colleagues from a place of
empathy is arguably even harder. Like Lady Macbeth scorning the "milk of
human kindness," then, this group of empathy-haters is turning one of our
most remarkable emotional capabilities into a negative.

But it’s hard to blame these detractors alone for the fears stoked up by the President’s
use of the word. Empathy as a value scares social conservatives because it
contradicts their current philosophy, particularly when it comes to the kind of
civil rights and reproductive rights issues that are decided in court.

Indeed, empathy should scare them. On
our end, the pro-choice, pro-reproductive justice philosophy is grounded in
empathy–the idea that we cannot judge another woman or person’s choice unless
we’ve walked a mile in her shoes. And even if we have.  It’s the inherent belief that we can’t
extrapolate the law or the rules from one person’s experience. The reproductive
justice movement is full of women who have chosen to carry a pregnancy to term
fighting for the right for others to have access to abortion and vice-versa,
women who underwent hospital births advocating acceptance for home births,
women in different types of romantic and family relationships advocating for
each other, and infinite other permutations.

The anti-choice movement has the opposite approach, a product of a massive
failure of imagination and a lack of empathy.  It’s the belief that one person’s
experience should apply to all: "I
regretted my abortion, so abortion should be illegal." "My teenage
daughter gave birth so all teen pregnancies should end that way." "I
disapprove of premarital sex, so safe sex education should be banned from
." Or occasionally, "my
reasons for having an abortion are legitimate, but she’s just a slut!

One person notably chafing against this complete inability to escape such a
limited worldview is Republican scion Meghan McCain, who
eviscerated her party’s approach to birth control in the Daily Beast last week
. While affirming that she is
"pro-life," McCain wrote that the Republican Party’s inability to
talk about things it deemed "immoral" renders it irrelevant:

Not everyone
shares the same beliefs, and more importantly, people don’t always react the
same way to their circumstances. Which is why it is so important to encourage
honest, open communication about the realities of sex within the party at
large, and more specifically, between parents and their children.

While McCain writes about a narrow issue, her
acknowledgement that different people
think and react differently
to the same situation shows a fledgling
understanding of, dare we say it, the kind of empathetic principles that are
sorely lacking in her party. She should be commended for providing reasonable
voice on the subject.

But here’s the problem. If we follow McCain’s burgeoning philosophy–each
person is different, and not all standards of sexual morality are universal or
objective–to its logical conclusion, it would lead a lot further. It might
lead all the way to a government and legal system that didn’t use outdated
mores to judge real-life cases.  It might lead to a pro-reproductive
justice, pro-gay marriage, pro civil-rights for all vision, and possibly even

Social conservatives know that injecting little bit of empathy into the public
discourse could go a long way towards changing the social hierarchies to which
reactionaries desperately cling.  So they have a major reason to be scared. But
the rest of us should be celebrating Obama’s use of a word that affirms our
better selves, and looking for a Supreme Court justice and other members of our
government that live up to the less-tangible, but no less important, standards
"empathy" represents.

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  • invalid-0

    I have been stymied by this since it came out that social conservatives objected to empathy as a quality to be desired. I have long considered my empathy to be one of my strongest and most positive gifts. It not only helps me be a more compassionate and well-rounded person, it helps me in my daily life in dealing with the clients at our clinic, and I’m still naive enough to believe that one person’s empathy can benefit the entire world. I hope we move toward a more empathetic society, one where people’s circumstances, needs, and beliefs are taken into consideration rather than condemned offhand.

  • invalid-0

    The strength of the empathetic foundation is also it’s weakness, however. By subjectivizing morality it provides provides a constructive web of communitarian values. However, by subjectivizing morality to such a great degree, it also loses its sense of moral progress, and thus superiority. For instance, one might say “I empathize with a women considering an abortion, and in so empathizing arrive at the conclusion that it is a bad idea to allow such a procedure.” Under empathetic ethics, there is absolutely no way to say this is a “wrong” opinion. It is, if we rigorously hold to the philosophy, entirely as valid as our own view.

  • invalid-0

    In his movie “The Fog of War”, former Secretary of Defense Robert McNamara describes empathy as his number one learning in the top military skills necessary for sound decision making. He claims that empathy would have demanded the proper intelligence to see Vietnam was a civil war, not the world domino theory promoted. Empathy might have shown what Saddam was really up to rather than falsely acting on a never ending war front that’s breaking this country’s economy. In short, if we can’t muster the courage to get into another’s shoes, momentarily surrendering our bias and believe system, we’ll never be able to touch one another’s humanity.
    An ancient spiritual poet, Rumi, has often been quoted, “Somewhere out there, beyond notions of right and wrong there’s a place. Let’s meet there.” This is where we find compassion, gratitude and forgiveness. We’re living in rapidly changing times that command us to move from last century thinking of power, war, material accumulation and ‘fixing’. The planet’s survival will depend upon collaboration, understanding and the application of empathy and listening. Thanks for the great article.