Pulpit Bulls

Policy, Politics, and What's In Between

Empathy? We Don’t Need No Stinkin’ Empathy! (Or Do We?)

Posted by Eric on May 25, 2009

Tomorrow, the White House will name Justice Souter’s Supreme Court replacement. Then cable news pundits will spend hours discussing the President’s use of “empathy” earlier this month. Over at Donkeylicious, Neil makes a good and very Donkeylicious point about the word:

An ability to understand other people’s lives — what it’s reasonable to expect of them, what will constitute an undue hardship, why homosexuals don’t have sex with women — is important to making the kinds of decisions that Supreme Court justices actually end up making. Empathy is a big part of how we understand people’s lives and come to know these kinds of things.

While conservative activists might be happy if Souter’s replacement was a PC performing “Ctrl+F” on a Constitution PDF to see what’s explicitly there and what’s not, that isn’t how real life jurisprudence works. It’s application demands thoughtful interpretation and that necessitates a human touch. A judge needs some kind of worldly lens to understand how Due Process and Equal Protection matters play out. The realization that pretending to drown a prisoner is torturous and therefore cruel or unusual shouldn’t be controversial. Freedom and privacy aren’t just abstract concepts–one needs a bit of life experience to understand and apply them. And all of these things require empathy!

There’s a legitimacy matter as well. Just as you would want a diverse court to be making decisions affecting a diverse populace, you want a populace to believe that that court understands their feelings or plight. If the court mocks a woman for getting pregnant or if justices had laughed and taunted Al Gore for losing Florida, there’d be big problems. Surely, empathy plays a legitimacy role in less exaggerated circumstances too.

Ultimately though, this manufactured “empathy” controversy is irrelevant. Unless Obama does something really stupid, the whole course is pretty predictable: a Democrat will be nominated tomorrow, conservatives will bitch and send out fund raising letters, the nominee will eventually be confirmed, and the makeup of the court will stay largely the same.

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One Response to “Empathy? We Don’t Need No Stinkin’ Empathy! (Or Do We?)”

  1. […] statement as clearly as she should have, her underlying point is one I mentioned when discussing empathy a couple days ago. To rephrase:  jurisprudence is not black and white. The Constitution is old and vague and it […]

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