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Ellen Goodman

What's so bad about empathy?

By Ellen Goodman
Globe Columnist / May 22, 2009
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I'VE NEVER BEEN sure why Lady Justice wore a blindfold as part of her permanent wardrobe. Yes, it's supposed to be a symbol of impartiality. But it does limit her vision a bit.

So it is that I am watching the run-up to the nomination of a new Supreme Court justice with eyes wide open. We've already had preemptive strikes against three women on the media short list. Elena Kagan, Diane Wood, and Sonia Sotomayor are getting the scary radical treatment without even getting picked.

More bizarrely, we have a full-throated campaign targeted against any candidate who might have a deep, dark secret buried in her resume. She may have, gasp, empathy.

The president has long talked about "that quality of empathy . . . as an essential ingredient for arriving at just decisions and outcomes." In describing the qualifications for his first pick, he said, "I will seek someone who understands that justice isn't about some abstract legal theory. . . . It is also about how our laws affect the daily reality of people's lives."

Who knew that he was waving a red flag before the red-staters? Now, a phalanx of horrified conservatives has trotted out, insisting that empathy is just a code word for the sentimental liberal bias in favor of underdogs over the Constitution.

The ever-combative Karl Rove dismissed empathy as the secret handshake connoting liberal activism. John Yoo, the man who justified torture for the Bush administration, sneered at the idea of a "Great Empathizer." Wendy Long of the Judicial Confirmation Network insisted that "Mr. Obama's gold standard is the very opposite of impartiality." It would usher in justices who decided the law by their mere "feelings."

You might say that they had an overly emotional response about emotion. Indeed, you might describe the passionate assault as an advance strike on any expected female nominee. Lady Justice notwithstanding, tradition sees the law as hard, rational, and male, while empathy is soft, emotional, female, and generally weepy.

But let us remember that empathy is not sympathy. It doesn't require that we take sides. Nor is it an emotional shortcut that upends all legal reasoning to declare a winner.

Empathy is rather the ability to imaginatively enter into the experience of others. As Harvard law professor Carol Steiker says, "We think of this as central to moral reasoning of any kind." How else to understand such moral basics as the Golden Rule?

The capacity to recognize another person's reality is not just liberal. The conservative jurist Richard Posner has described empathy as an important instrument in a judge's tool kit. It doesn't trump reason, it informs reason.

It may be easier to have empathy for someone like you, whether CEO or schoolgirl. After the recent and unsympathetic hearing of a case revolving around a girl who was strip-searched in pursuit of ibuprofen, Justice Ruth Bader Ginsburg remarked that she was the only one on the bench who knew what it was like to be a 13-year-old girl. But biography is no guarantee of empathy. Or its absence.

The irony in the attack on empathy is that the most dramatic flameout of a nominee was Robert Bork. The public as well as the Senate turned against Bork precisely because he seemed to regard the Supreme Court as nothing more than an intellectual chess game played with pawns, not people. Since then, conservatives have gone out of their way to describe their picks as people who understand the little guy as well as the Constitution.

Much was made of John Roberts's summer stint in a steel mill as if that gave him solidarity with workers. Samuel Alito was described as the son of working-class immigrants. And Clarence Thomas's boosters assured us that his experience with racial discrimination meant that he would understand others in the same boat. Circle false on your answer sheet.

The truth is that we want judges who "get it." The myth of justice as a matter of pure objective reasoning that could be meted out by a computer is just that, a myth. Check all those 5-4 decisions. Part of "getting it," says Susan Bandes, author of "Passions of the Law, is "the capacity to know what's at stake for all the litigants." In short, empathy.

Finally, as this debate goes on, it's worth asking what exactly would a judge without empathy look like? Bandes offers a name straight out of "Star Trek": "Spock."

Justice Spock? Science Fiction v. The Law? Remove your blindfolds.

Ellen Goodman's e-mail address is ellengoodman@globe.com.

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