By Dan Froomkin
1:35 PM ET, 05/13/2009
It's kind of ironic that empathy may turn out to be one of the most contentious topics in modern American politics. But empathy is at the very core of President Obama's political philosophy. And -- as seen in the response to his announcement that he considers empathy an essential attribute for a Supreme Court pick -- there's something about the word that seems to drive his critics on the right crazy.
On its face, it's hard to imagine why anyone would be threatened by empathy, either in general, or in particular as a desirable quality in a Supreme Court justice. Empathy, after all, is just about understanding others' feelings.
One glorious thing about this country is that there isn't (or at least shouldn't be) any conflict between having empathy and fervently adhering to the Constitution and the egalitarian vision of the founders.
Are Republican critics of Obama's empathy litmus test saying that one can't be empathetic and conservative at the same time? That self-centeredness is a GOP prerequisite? Hardly. They say Obama is simply using empathy as a "code word" for "activist judges" who will side against the wealthy, the strong and corporate interests even if the law suggests otherwise. (See my May 4 item. Also see Stephen Colbert's hilarious riff on trying to crack Obama's code.)
But it's worth remembering that "activist judge" is itself a thinly-disguised code word for someone who supports what liberals consider social progress. As Matthew Yglesias recently wrote for Think Progress: "The idea of an 'activist judge' is something that was cooked up by white supremacists in the 1950s and 60s who didn't like judges bossing people around and telling them they had to let black people vote and go to school."
Indeed, two academic surveys have found that whether you judge activism by the propensity to strike down laws passed by Congress or to strike down actions taken by the executive branch, it is the conservative justices who are more activist than the liberal ones.
Here's what Obama said on May 1 about what he's looking for in a replacement for David Souter: "I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book; it is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.
"I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving as just decisions and outcomes."
So what exactly does Obama mean by empathy? It's no mystery. He's written and spoken about it at length. It's worth reviewing.
In his 2006 book, The Audacity of Hope, Obama writes of his enormous admiration for the late Senator Paul Simon. "[H]is sense of empathy...is one that I find myself appreciating more and more as I get older. It is at the heart of my moral code, and it is how I understand the Golden Rule -- not simply as a call to sympathy or charity, but as something more demanding, a call to stand in somebody else's shoes and see through their eyes.
"Like most of my values, I learned about empathy from my mother. She disdained any kind of cruelty or thoughtlessness or abuse of power, whether it expresses itself in the form of racial prejudice or bullying in the schoolyard or workers being underpaid. Whenever she saw even a hint of such behavior in me she would look me square in the eyes and ask, "How do you think that would make you feel?" ...
"I find myself returning again and again to my mother's simple principle -- 'How would that make you feel?' -- as a guidepost for my politics.
"It's not a question we ask ourselves enough, I think; as a country, we seem to be suffering from an empathy deficit. We wouldn't tolerate schools that don't teach, that are chronically underfunded and understaffed and underinspired, if we thought that the children in them were like our children. It's hard to imagine the CEO of a company giving himself a multimillion-dollar bonus while cutting health-care coverage for his workers if he thought they were in some sense his equals. And it's safe to assume that those in power would think longer and harder about launching a war if they envisioned their own sons and daughters in harm's way.
"I believe a stronger sense of empathy would tilt the balance of our current politics in favor of those people who are struggling in this society. After all, if they are like us, then their struggles are our own. If we fail to help, we diminish ourselves.
"But that does not mean that those who are struggling -- or those of us who claim to speak for those who are struggling -- are thereby freed from trying to understand the perspectives of those who are better off. Black leaders need to appreciate the legitimate fears that may cause some whites to resist affirmative action. Union representatives can't afford not to understand the competitive pressures their employers may be under. I am obligated to try to see the world through George Bush's eyes, no matter how much I may disagree with him. That's what empathy does -- it calls us all to task, the conservative and the liberal, the powerful and the powerless, the oppressed and the oppressor. We are all shaken out of our complacency. We are all forced beyond our limited vision.
"No one is exempt from the call to find common ground."
But there's no escaping that empathy as Obama sees it generally seems to lead to progressive values. Later in the book, he writes: "I believe a stronger sense of empathy would tilt the balance of our current politics in favor of those people who are struggling in this society. After all, if they are like us, then their struggles are our own. If we fail to help, we diminish ourselves."
Here are Obama's remarks to Planned Parenthood on July 17, 2007: "[I]t's important to understand that there is nothing wrong in voting against [judicial] nominees who don't appear to share a broader vision of what the Constitution is about. I think the Constitution can be interpreted in so many ways. And one way is a cramped and narrow way in which the Constitution and the courts essentially become the rubber stamps of the powerful in society.
"And then there's another vision of the court that says that the courts are the refuge of the powerless, because oftentimes they may lose in the democratic back-and-forth. They may be locked out and prevented from fully participating in the democratic process....
"You read the statute. You look at the case law, and most of the time the law is pretty clear -- 95% of the time....
"But it's those 5% of the cases that really count. And in those 5% of the cases what you got to look at it is: What is in the justice's heart? What's their broader vision of what America should be?"
Obama also spoke at length about the "empathy deficit" in a January 20, 2008, campaign speech in Atlanta: "I'm taking about an inability to recognize ourselves in one another; to understand that we are our brother's keeper; we are our sister's keeper; that, in the words of Dr. King, we are all tied together in a single garment of destiny.....
"We have a deficit when CEOs are making more in ten minutes than some workers make in ten months; when families lose their homes so that lenders make a profit; when mothers can't afford a doctor when their children get sick.
"We have a deficit in this country when there is Scooter Libby justice for some and Jena justice for others; when our children see nooses hanging from a schoolyard tree today, in the present, in the twenty-first century."
Peter Slevin writes in today's Washington Post: "By making empathy a core qualification, he is uniting his own eclectic experience as a community organizer and constitutional-law professor while demanding what he has called 'a broader vision for what America should be.'..
"Obama offered clues to his thinking in January 2006, when he opposed the successful nomination of Samuel A. Alito Jr., then an appellate judge. In cases in which Supreme Court precedent was unclear, he said, Alito 'consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding Americans' individual rights and liberties.'
"Alito's attitude, he said, did not support the role of the court as a 'bastion of equality and justice for U.S. citizens.'...
"The president's focus has drawn criticism, particularly from conservatives. Senate Minority Leader Mitch McConnell (R-Ky.) interpreted Obama's empathy remark as a determination to pick judges on their 'perceived sympathy for certain groups or individuals.' He said such an approach would undermine public faith in the judiciary."
Dahlia Lithwick writes for Slate: "One is surely entitled to say that President Obama's repeated claim that he seeks 'empathy' in a replacement for Justice David Souter is something less than a crisp constitutional standard. But the Republican war on empathy has started to border on the deranged, and you can't help but wonder to what purpose....
"Empathy in a judge does not mean stopping midtrial to tenderly clutch the defendant to your heart and weep. It doesn't mean reflexively giving one class of people an advantage over another because their lives are sad or difficult. When the president talks about empathy, he talks not of legal outcomes but of an intellectual and ethical process: the ability to think about the law from more than one perspective.
"But Republicans have gathered up their flaming torches and raised their fists to loudly denounce empathy and all empathy-based behavior as evil."
Lithwick asks: "When did the simple act of recognizing that you are not the only one in the room become confused with lawlessness, activism, and social engineering?"
George Lakoff, a professor of cognitive science and linguistics at the University of California at Berkeley, recently blogged at Firedoglake: "We now know from the study of mirror neuron systems in the brain that empathy is physical, a capacity built into our very bodies. It is what allows us to feel what others feel and appears to be the basis for human connection and the capacity to care about others. Our native neural capacities for empathy can be strengthened by how we are raised, or it can decay when empathy is not experienced — or we can be trained to develop neural circuitry to bypass natural empathy.
"President Obama has argued that empathy is the basis of our democracy. It is because we care about others, he has argued, that we have principles like freedom and fairness, not just for ourselves but for everyone. I have found, in studies of largely unconscious political conceptual systems, that empathy is the basis of progressive political thought, and the basis for the very idea of social, not just individual, responsibility. Conservative political thought is otherwise structured, based on authority, discipline, and responsibility for oneself but not others. The major moral, social, and political divide in America centers around empathy."