Judging from the heart - or the head
EVEN BEFORE President Obama announced the nomination of Justice Sonia Sotomayor to the Supreme Court, he asserted that one of the criteria he would use in his selection was empathy. What the president said he wanted was not a justice who was cold, technical, and inflexible but rather a justice who recognized the effects of his/her decisions on actual people. Immediately and predictably the forces of the right erupted, insisting that what the president really wanted was a justice who would ignore the law to indulge his/her own sensitivities: empathy over impartiality. Thus the issue was joined.
It promises to be a fascinating debate because it doesn’t just recycle the old political clichés about what separates the Democrats from the Republicans, the left from the right. Typically, we’ve been told that the left favors big government, the right small; the left favors soft diplomacy, the right hard force; the left favors rights, the right responsibility; the left favors equality, the right justice, etc., etc., etc., ad nauseum. But this new exchange over empathy may provide a more fundamental and practical way of viewing the left-right dichotomy - fundamental because it addresses their very concepts of human nature and the human enterprise, practical because it provides a handle on how they govern. In this division, the lefties are proudly “empathists,’’ the righties proudly “rulists.’’
On the face of it, despite the right-wing celebration of Ayn Rand’s total self-absorption, no one can really object to empathy. Our capacity for feeling what others feel is one of the qualities that makes us human, not to mention decent. Putting ourselves in other people’s shoes enables us to care about each other because, in Bill Clinton’s immortal words, we can feel their pain. More, empathy, in the formulation of the political philosopher John Rawls, is the very source of political community because each of us understands that we might need to be the beneficiary of assistance some day, which is why we are willing to help others. To the empathist, allowing for the fact that different people are affected differently by the same measures, the true test of any law, policy, or decision is what it does to real human beings, not how neatly it fits into some theoretical category.
More than anything else - more than attitudes about the size of government or the use of power or the expansion of rights - this is what has defined liberalism. Liberals judge policy on how effectively it benefits ordinary people, particularly the least powerful of us who need government the most to redress injustice and inequality. That’s why liberals are better labeled empathists.
Of course few people of any ideology neglect the real-life consequences of policy; they just disagree on what those consequences ought to be. But to be most charitable, what the right may really object to about empathy is that it is a mushy and inexact concept, and it cannot be applied with any logical rigor. It emphasizes emotion rather than reason, which means that it is subject to all sorts of impurities. Rulists are suspicious of anything that allows the rules to be bent. For them, rules are rules, not suggestions, and the primacy of a rule is more important than any individual outcome. If rules can be modified because, emotionally speaking, we may not like the result, we are left, conservatives say, with a kind of subjectivism that could lead to anarchy. For rulists, the head must always prevail over the heart. The heart is just too unreliable.
Clearly empathists and rulists have different hierarchies of values. For empathists, people matter most. For rulists, the institution of law is what matters most. That’s why legal conservatives talk about “strict construction’’ of the Constitution or “originalism’’ or judicial restraint which are subsets of rulism. They are searching for ways to take the human out of the law - to make law rigid and mechanical. Put another way, empathists believe the law is an instrument for people. Rulists believe that people are instruments of the law.
Seen through this prism, the conservatives’ longstanding problem with government may not be that it threatens individual rights or mucks around with the free-enterprise system - neither of which conservatives seem to find objectionable when their fellow rightists are doing the threatening or mucking. The real problem is that governments are made of people and are thus messy, even possibly, God forbid, empathetic. Only the law itself is somehow untainted. So it is not individual rights that rulists really revere. It is order.
Beneath this hierarchy of values is an even more profound difference between empathists and rulists: their view of human nature. Empathists tend to believe in the basic decency of people and in their perfectibility. Consequently, they see the role of government as liberating human potential, which is why they worry less about rules evolving or changing than rulists do. After all, if people are basically good, one doesn’t have to find ways to suppress them.
Rulists on the other hand are Hobbesian. As they see it, people are not basically good. Quite the contrary. They are self-interested, corruptible, often cruel. They must be kept in check, and rules are the means society has developed to contain those baser instincts and maintain order. The stricter and simpler the rules and the more intractable their application, the stronger the order, and the better the society. It is another reason why rulists justify torture and empathists can’t, or why rulists promote executive power even as they give lip service to government restraint and empathists don’t, or why rulists look to military options and empathists look to diplomacy.
The problem for real-world politics is that while we know what it is to empathize, it is much more difficult to imagine rules that don’t have a human element to them. Justice John Roberts may think, as he said during his confirmation hearings, that his job was simply to call balls and strikes, a rulist approach if ever there was one, but any baseball fan knows that one man’s strike might be another man’s ball. So while rulism may sound workable, even noble, it may be just another form of human foible - not the pretense that we can understand someone else’s pain but the pretense that we can insulate ourselves from human feeling altogether.
Still, as President Obama has framed it, the ideological debate may be clearer now. It is not between advocates of activist government and advocates of limited government. It is between those who understand and embrace the human dimension of government and those who believe that you can and must somehow trump your emotions and objectively arbitrate life, regardless of whether people suffer or not.
Neal Gabler is the author most recently of “Walt Disney: The Triumph of the American Imagination.’’ 