Saturday, May 30, 2009


Yes, "empathy" is too a dirty word for a judge, pace Gloria Borger. I have rarely encountered such second-rate thought, as in her article. Obama said he wanted someone with empathy, which he supposes means someone who understands "ordinary Americans so that everybody is heard." Well, it's on Obama, that he doesn't know what empathy means. It does not mean someone who understands. It means someone who feels. My question must be, which of the current SC justices is not an ordinary American, who therefore would not "understand" and therefore not hear? Clearly, it was not understanding that Mr Obama was looking for. And he has found it, in Ms Sotomayor.

As for Borger, she infers, and assumes we should infer, that empathy "comes largely from life experience and background. Ipso facto, Sotomayor's up-by-the-bootstraps life story could well make her a more empathetic justice." Moreso than that of Justice Thomas? Did Justice Scalia come from privilege? And these men are noteworthy for their lack of empathy? I'm a little confused by her reasoning. Does injustice and a minority upbringing make one wise, only? It never makes anyone bitter? It's just stupid. I could make myself sound less ad hominem, but I expect you to read with some intelligence.

Empathy. "It's a notion that clearly horrifies conservatives." Well meeow. Tell me more about myself and my feelings, Ms. Borger, please. I'm so disconnected from them. Empathy horrifies us when it is put forward as the major qualification to sit on the highest judicial body in the land.

"For conservative purists, empathy is all about feelings, which have no place in the law. It's also about experiences -- even ethnicity -- which should also have no place in the law." Wrong. Empathy is not all about feeling. For conservatives, it is about feeling, and then about how we react to that feeling. Of course feelings have a place in the law. What a truly bigoted analysis Ms Borger is indulging in. It's as if she expects only people who agree with her to read her piece. You'd think she'd have the humility, or intelligence, to ask, rather than tell, conservatives what it is they think, or feel, or whatever it is she thinks she's talking about.

And while empathy is likely to be about experience, is it really about ethnicity? It seems a strange empathy that I would feel, only because someone of my own race is suffering injustice. Don't we generalize that insight, beyond race, toward injustice against all humanity? Isn't that what empathy is, rather than some sort of racist alliance and allegiance, where my proud white aryan brothers are attacked by the mudpeople? -- or my proud black sisters are oppressed by the blue-eyed devils? -- or my proud brown ancestors are genocided by the paleface invaders? I had not realized that some people see empathy as a selfish thing. Thank you, Ms Borger, for fresh insight into the liberal way of thought. Empathy is racist. Noted.

As for empathy having no place in the law, perhaps Borger justifies that with the qualifier, conservative purists, a rare and perhaps hypothetical species of political animal. We engage empathy when it comes to the penalty phase of judicial decisions. Guilt is decided on the objective merits of the evidence. Then we get more subjective. Nobody had to tell me this. I just made it up right now. If it is not obviously correct, tell me how. If I can get it, who put no thought into it, why don't leftists understand it, who write long wrong articles about the subject?

"As a defiant Justice Antonin Scalia said in 2007, 'Just as there is no "Catholic" way to cook a hamburger, I am hard-pressed to tell you of a single opinion of mine that would have come out differently if I were not Catholic.' And I'm sure he's telling the truth." That's big of her, how she sort of concedes a little that the defiant Scalia is not lying.

"But there's more to it than that. 'If empathy means you understand what other people are thinking,' says one senior White House adviser, '... you would think you would want a judge with empathy.' That's also true." Hm. Well, first, is it true that empathy "means you understand what other people are thinking"? I would refer you to an actual dictionary to answer this deep question. Since that is manifestly too much trouble, however, I'll just say, no, that's not what empathy means. It's not mind reading. It's feelings feeling. So do we want a judge who feels feelings? I'm sure Borger is telling the truth. What then have we discovered here? That they don't know what empathy means, but that empathy is a good thing.

"So here are the questions: Can a justice have empathy and still rule dispassionately on the law? Or does empathy so control -- and even corrode -- our nature that it affects every intellectual argument? Or, conversely, would judicial decisions actually benefit from a dose of empathy?" Sadly, these are not the questions. The first doesn't need to be asked. Empathy is a requirement, for wisdom; it's a part of understanding. The second is a false proposition. No serious person argues against empathy -- noting, of course, what the word actually means. The third is not a question at all, it is Borger's and the Left's position statement, using their special definition, misdefinition of empathy.

The answer to all her "questions" is the same. Judicial decisions are often complex things, and require varying proportions of mercy and severity. But always will they require rationality and adherence to the rule of law and its precepts, and only sometimes will they require empathy. A dispute over some dry clause in a contract does not need to fall back upon Ms Sotomayor's quinceanera heartbreaks or joys to achieve an epic level of jurisprudential probity. To say judges need empathy is to say they need to be normal human beings. This needs to be said? Only by the left, because they recognize the right only in caricature.

"The alleged proof is a statement she made at a symposium in 2001 arguing that a 'wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who has lived that life.' It was silly, to be sure, and more than a tad self-serving." Fascinating. Y'see, Ms Borger, there's this thing called "evidence", and we use it to form opinions. Some evidence has to do with what people say. That's called "testimony".

When Ms Sotomayor says she thinks she will more often than not make better decisions than a "white" "male" (why not "man"? Are we talking about some breed of bear?), we are reasonable to suppose, first, that this is what she actually believes -- a "silly" and "self-serving" belief -- and second, that she is a bigot and a racist and a fool. Is this "alleged proof" insufficient to sustain such a harsh opinion? If I lack nuance, here, it is in response to the black and white quality of her statement. How do we know what people think? By what they say, and by what they do.

Borger asks, "how can anyone argue with the notion that who we are affects -- in one way or another -- how we view things? And on a collegial, multi-member court, isn't that diversity of experience a good thing?" Well, no one argues with that notion. So why bring it up? "Who we are" is a problematic formulation, but we'll pass over that. As for collegial, multi-member courts, diversity is a good thing if it includes qualified people who are there on the merits of their accomplishments; in such case, diversity is a good thing because it creates a comforting impression for shallow and callow and unthinking people, that they may feel reassured in their insecurities, and that their bigotries may be assuaged.

Borger asks, "Can anyone point to a pattern in Sotomayor's opinions that are based more on 'empathy' than the law? Of course not." Well I would hardly know. Neither would Borger. She's not lying, she's just mistaking her ignorance of Sotomayor's record as proof. I guess she feels she's just right, and this feeling is enough? Rather than actually investigate the record? That's reasonable, as I define the term (it's all about feeling and my life experience). Am I wrong? Of course not.

"And that's precisely the point: Unless Sotomayor's opponents can succeed in using her judicial record to portray her as a passionate, wild-eyed judge who depends more on emotion more than legal precedent, they're in for a tough time." Wrong. Passion is irrelevant. Wild-eyed is a strawman. Depending on emotion is the point. So, what, I must ask, prompted Ms Sotomayor's assertion, that her experience makes her better? Was it sound reasoning? -- what then are the steps of her logic that demonstrate this? Is it reality? --where we find latinas in charge, is life better? I suggest it is emotion. A desperately injudicious statement, plotted, printed, presented and published, that is as racist a statement as I've ever encountered, sans epithets. It has a Nazi-like inevitability to it -- just sure of itself, self-evident, as if no one could dare object.

"If they think empathy is a dirty word, they'll have to convince the American public." No. Wrong. That's not what we think. Racism is what's dirty. You, Ms Borger, need to be convinced of this. For shame.

But I have just decided, regardless of evidence, reason or reality, that blond is superior. This is not racism. It is the unique conclusion of my life experience and background, and should be acknowledged and celebrated by every empathetic and therefore understanding person. The richness of my experience is not to be denied. Any of the preceding that may seem contradictory or inconsistent in this regard is to be dismissed as inconvenient to my momentary point, and ignored. White power!


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