Stanley Fish wrote a great column this week about Obama's claim that the next Supreme Court justice should be someone who interprets the law with a dose of "empathy."
Obama named his nominee, Sonia Sotomayor, on Tuesday. The "empathy" comment had come in a May 1 press conference, in which Obama said he wanted to nominate a judge "who understands that justice isn't about some abstract legal theory.... I view [the] quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes." Obama wanted a nominee who thoroughly knew the law but also knew that laws should change to adapt to social conditions. He wanted someone, he said, who had "respect for [the] constitutional values on which this nation was founded" and could think flexibly about "apply[ing] them in our time." (For his past descriptions of the need for empathy in a nominee, click here.)
Stanley Fish's column details the hot political debate that took off after Obama asked for a judge with "empathy." (For more on the crossfire, see Dahlia Lithwick's Slate article here and Charlie Savage's The New York Times piece here). In a nutshell, many conservatives are arguing that a discussion of empathy has no role in the discussion of legal acumen. Being "empathetic," claimed Utah's Senator Orrin Hatch on This Week is like using "personal preferences and feelings [in] place of being impartial and deciding cases based upon the law." Hatch's assumption is that we can--and that we traditionally have--interpreted the Constitution in an objective way, or without cultural bias. To conservatives who agree with Hatch, a call for "empathy" is just a strategic liberal move: the championing of certain races, sexual orientations, social classes, and genders.
On the other hand of this debate, the liberal perspective is more likely to argue that law is always interpreted from some bias. Furthermore, a liberal tends to say, power has historically consolidated in such a way that even while it promises equal opportunity to us all, certain groups have a minimal voice in today's system. In this sense, a call for "empathy" might indeed imply a need for change--for reconnecting our flaccid legal descriptions of "justice" and "democracy" to the world we're currently living in.
Fish made some interesting points in his column. One is that any self-referential system--like the highly technical lingo of medicine, or Pig Latin, or the language of law--runs the risk of becoming an autonomous or closed system. A closed system only looks inside of itself--at its own past and its own terms--to determine its so-called truths. The danger of a closed system is that it can lose touch with the very outside world that it's purporting to represent or to help. For instance, we can develop a written, legal definition of "equality" which does not functionally promote social equality in America in 2009. Consider one ruling from the Supreme Court which was actually made on the same day in which Obama named Sotomayor his nominee. The ruling, called Montejo v. Louisiana, overturns a 23-year-old precedent which limits police from interrogating a suspect when the suspect's lawyer is absent. Under the new ruling, the police can conduct interrogation in the lawyer's absence. Judge Scalia sees this as allowing for quicker "justice," but it also radically decreases a frightened suspect's self-protection in the back of a police car.
At its extreme, a closed system has the confusing quality which frustrated little Alice in the grand world of Wonderland, in which any truth was a "truth" because of mere tautology. In one scene in Alice in Wonderland, the White Rabbit wants to know how to tell a story, and the King of Hearts (who is a King of empathy in his name but not in his being) tells him bluntly, "Begin at the beginning and go on till you reach the end. Then stop." That is: The "beginning" is the "beginning" because that's its name; and if that's not self-evident to you, there's no further recourse.
Autonomous or closed systems also tend to stake their claims on objectivity, because a claim to absolute truth allows the authors of any system to keep it together even as the world around it changes. As Fish points out, the Nazis maintained a claim on justice by defining right and wrong on their own terms. To correct that definition of "right," an outside hunch--a natural if not constructed sense of justice--was needed. Before Brown vs. Board of Education, American law also named racial segregation an "equality" with the then-trusted term "Separate but Equal." Someone needed to empathize with the people living on the other side of that term to refine the system.
Supreme Court nominee Sonia Sotomayor claims that her sense of empathy comes from the fact that our diverse cultural histories, including "experiences as women and people of color," will always "affect our decisions." In a 2001 speech at Berkeley, she said that "cultural differences [including] gender and national origins may and will make a difference in our judging." Some critics have quoted her from that speech, blaming her for overt bias. She openly agrees that she has a bias of sorts. But she adds that everyone does, and that her particular bias is a relevant perspective for reconsidering our 20th Century American use of the word "justice."
What do you think: What role does empathy or even cultural perspective have in shaping contemporary justice?
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Message Edited by IlanaSimons on 05-28-2009 08:15 AM
