Conservatives Are Waging a War on Empathy -- We Can't Let Them Win
Continued from previous page
President Obama has described Justice Sotomayor in empathetic terms -- a life story that would lead her to understand people who live through oppression and deprivation and what it does to them. In other words, a life story that would allow her to appreciate the consequences of judicial decisions and the causal effects of living in an unequal society.
Empathy in this sense is a threat to conservatism, which features individual, not social, responsibility and a strict, punitive form of "justice." It is no surprise that empathy would be a major conservative target in the Sotomayor evaluation.
But the target is not empathy as it really exists. Instead, the conservatives are reframing empathy to make it attackable. Their "empathy" is idiosyncratic, personal feeling for an individual, presumably the defendant in a legal case. With "empathy" reframed in this way, Charles Krauthammer can say, echoing Karl Rove, "Justice is not about empathy." The argument goes like this: Empathy is a matter personal feelings. Personal feelings should not be the basis of a judicial decision of the Supreme Court. Therefore, "justice is not about empathy." Reframe the word "empathy" and it not only disqualifies Sotomayor; it delegitimizes Obama's central moral principle, his approach to government, his understanding of the nature of our democracy, and progressive politics in general.
We cannot let conservatives get away with redefining empathy as irrational and idiosyncratic personal feeling. Empathy is the basis of our democracy and its true meaning must be defended.
But the attack can be sneaky. Take David Brooks' column in the NY Times (May 29, 2009). He frames what he calls "The Empathy Issue" in terms of the use of emotions in decision-making. He is doing a conservative reframing of the issue. What is sneaky is that he starts by saying a number of true things about emotions. As Antonio Damasio pointed out in Descartes' Error, you can't make rational decisions without emotions. If you have a brain injury that wipes out your emotional capacity, you don't know what to want, since like and not-like mean nothing, and you can't tell what others will think of you. Here is Brooks:
People without emotions cannot make sensible decisions because they don't know how much anything is worth. People without social emotions like empathy are not objective decision-makers. They are sociopaths who sometimes end up on death row.
Supreme Court justices, like all of us, are emotional intuitionists. They begin their decision-making processes with certain models in their heads. These are models of how the world works and should work, which have been idiosyncratically ingrained by genes, culture, education, parents and events. These models shape the way judges perceive the world.
Note the mixture of truth and non-truth. Yes, sensible decisions require emotions. Yes, people without empathy are sociopaths. Yes, we all make decisions based on models in our head of how the world works. That's basic cognitive science. Mixed in with it is conservative reframing. No, empathy is a lot more than a "social emotion." No, using models of the world in decision-making need not be a matter of emotion. It's just how real reason works. Then the conclusion.
But because we're emotional creatures in an idiosyncratic world, it's prudent to have judges who are cautious, incrementalist and minimalist. It's prudent to have judges who decide cases narrowly, who emphasize the specific context of each case, who value gradual change, small steps and modest self-restraint.
Right-leaning thinkers from Edmund Burke to Friedrich Hayek understood that emotion is prone to overshadow reason. They understood that emotion can be a wise guide in some circumstances and a dangerous deceiver in others. It's not whether judges rely on emotion and empathy, it's how they educate their sentiments within the discipline of manners and morals, tradition and practice.