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The Empathy War

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."

By Dan Froomkin  |  May 13, 2009; 1:35 PM ET
 
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Comments

The important thing to note about empathy is that, in this context, it can mean anything.

As President Obama uses the word, it is clearly directed at his more liberal supporters. It is an article of faith among many liberals that people and especially jurists who do not agree with their politics must be devoid of human feeling. Announcing that he seeks a Supreme Court nominee with empathy is a message to liberals that he wants someone more like them -- a real human being, as opposed to soulless, heartless justices like John Roberts or Antonin Scalia.

But that's all it tells us, and I suspect all it is meant to. Obama, unlike any of his recent predecessors, has devoted part of his professional life to thinking about the law. Presumably he has more refined ideas about the kind of Justice he would like to appoint to the Supreme Court than the non-lawyer Bushes or Reagan, or even than Bill Clinton, who used his law degree as a ticket to punch on his fast track to Arkansas politics. We have some hints about what those ideas might be; Obama has hinted that he might not want to continue the recent trend of nominating only appeals court judges and people who have never served in elective office, for example.

These are important hints substantively, but not politically. Obama's liberal supporters don't care that all the current Justices came to the Court from the appeals bench, that eight of them went to law school at either Yale or Harvard, that seven of them served on courts in the Northeast, or that none of them have ever run a business or had to ask people for their votes. They care that Obama nominate one of them, someone who cares, someone with empathy. And Obama has sent that message, leaving himself a lot of running room to pick Justices he thinks will improve or enrich the Court in more tangible ways.

Posted by: jbritt3 | May 13, 2009 1:57 PM | Report abuse

"Are Republican critics of Obama's empathy litmus test saying that one can't be empathetic and conservative at the same time?"

No, but I'll say it. Empirically, it seems to be the case.

Posted by: mobedda | May 13, 2009 2:01 PM | Report abuse

@ jbritt3: Why do you say "...empathy ... in this context ... can mean anything"? Most of the text of this piece is Obama defining empathy as he means it. Isn't that the opposite of allowing for broad interpretation?

Just a bit of his clarification from Froomkin's posting [above]:"'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.'"

Posted by: mobedda | May 13, 2009 2:11 PM | Report abuse

I would be astounded if these conservatives, who rail against "empathy," campaign in any way that suggests they don't know or care what's going on with their constituents. Isn't that empathy?

Oh, I forgot: it's only a sin when it's the OTHER guy doing it.

Posted by: dbitt | May 13, 2009 2:13 PM | Report abuse

Another thing: are conservatives pretending that their judges DON'T have opinions on things? Are they saying that their judges are hermetically sealed, self-contained computers of black-and-white justice?
If so, I'd suggest they review Bush v Gore to find an example of political ideology trumping law. That decision was based on a political point of view. To imply that conservative judges always get it right with their opinions while liberals always get it wrong is the same kind of mindless partisan rancor that Ann Coulter and Michelle Malkin spew every day.

Posted by: dbitt | May 13, 2009 2:15 PM | Report abuse

Republicans will block and Obama will not push. Look for another Scalia as his 'compromise' with Republicans. Geeze I thought Obama would be tougher. Turns out, he's just as cowardly as the rest of the Dems. Pitiful.

Posted by: davidbn27 | May 13, 2009 2:53 PM | Report abuse

The point is that the context in which we are discussing empathy is a nomination to the Supreme Court.

To say 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" or that "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" is not a clarification of what President Obama means by empathy in a Court nominee. Supreme Court justices do not get to decide matters of war and peace, or direct businesses what they should pay their senior management compared to other employees.

In fact, Obama's statements during the campaign (and in his book) were generally not directed at the specific question of who should sit on the Court, but at larger attitudes in society. On their face, his conclusions could be argued with, but that's not the issue here. This is instead the matter of how many potential nominees to the Supreme Court by this President could meet his "empathy test." The answer is, lots and lots.

Posted by: jbritt3 | May 13, 2009 4:18 PM | Report abuse

The Right has built their whole movement around a vocabulary when it comes to the Judiciary. Certain that their vision of America & their reading of the Constitution are correct, any outcome that occurs with which they disagree, it is "Judicial Activism". Ahh, the Right - love to talk a big game about Democracy, but so contemptuous of the fact that it might lead to outcomes that they do not prefer. Funniest part, when it comes to the Supreme Court, 7 of the 9 are GOP appointees. Way to pick em!

Posted by: nameit23 | May 13, 2009 4:21 PM | Report abuse

"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."

Channeling Howard Zinn!

Posted by: unojklhh1 | May 13, 2009 5:14 PM | Report abuse

I guess that obvious psychopaths are out of contention.

Posted by: dickdata | May 13, 2009 5:32 PM | Report abuse

I would be astounded if these conservatives, who rail against "empathy," campaign in any way that suggests they don't know or care what's going on with their constituents. Isn't that empathy?
_______
You miss the point.. empathy is fine for an elected official. He is suppose to look out for his constituents. Froomkin also mentioned Obama and the empathy his mother had.. well I hope so. But a judge is suppose to decide based on the LAW!! Not who he feels sorry for. If a company is being sued you may feel sorry for, empathy for, the ones who are suing... but if the LAW is on the side of the company a judge is suppose to come down on the side of the LAW!!! To pick judges who decide not on the law but on who they feel the most empathy for you might as well throw the Consititution out the window..

Posted by: sovine08 | May 13, 2009 5:58 PM | Report abuse

"Another thing: are conservatives pretending that their judges DON'T have opinions on things?"

Heh! Well, yes, that's what Republicans are SAYING. Heck, they've been SAYING since well before Reagan took office that they believe in small, inexpensive government. Now, as to what they actually BELIEVE, wel-l-l-l...

Posted by: rlg3526 | May 13, 2009 7:39 PM | Report abuse

To pick judges who decide not on the law but on who they feel the most empathy for you might as well throw the Constitution out the window..
_____________
In a recent case, the court was asked to decide whether school officials strip-searching a 13-year-old girl constituted a reasonable search. The girl in question was traumatized by the incident, and claims it violated her constitutional protection from unreasonable search and seizure. If a student were not likely to be traumatized by a strip-search the school would unquestionably have the right to search her. The supreme court must now weigh the responsibility of the school with the rights of student, deciding how far is too far when conducting searches. Empathy plays a legitimate role in judicial decision-making in cases like these, where emotional trauma, which has concrete negative effects but remains nebulous.

Posted by: jimdarling | May 13, 2009 8:06 PM | Report abuse

I would be astounded if these conservatives, who rail against "empathy," campaign in any way that suggests they don't know or care what's going on with their constituents. Isn't that empathy?
_______
You miss the point.. empathy is fine for an elected official. He is suppose to look out for his constituents. Froomkin also mentioned Obama and the empathy his mother had.. well I hope so. But a judge is suppose to decide based on the LAW!! Not who he feels sorry for. If a company is being sued you may feel sorry for, empathy for, the ones who are suing... but if the LAW is on the side of the company a judge is suppose to come down on the side of the LAW!!! To pick judges who decide not on the law but on who they feel the most empathy for you might as well throw the Consititution out the window..


Posted by: sovine08 | May 13, 2009
^^^^^^^^^^^

Sorry sovine, you are the one who has missed the point.

This IS the point:

"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."

Posted by: dematheart | May 13, 2009 9:00 PM | Report abuse

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