Politics & Policy

Against Judicial Empathy

Why the Supreme Court must be the most dispassionate of the three branches of government.

Back in 2006, when liberal commentators were assuring us that Iraq was in the throes of an epic civil war, that American military forces were helplessly and hopelessly mired in the thick of it, and that the suggestion that a “surge” of troops would make the slightest difference required, as the junior senator from New York later put it, a “willing suspension of disbelief,” an MSNBC-watching, New York Times–reading colleague of mine cornered me between classes and asked if I still supported President Bush’s decision to invade Iraq and topple the regime of Saddam Hussein.

To her dismay, and perhaps shock and awe, I answered that I did — and began laying out my reasoning (as I have many times for NRO readers). Finally, in exasperation, she looked me in the eye and said, “What if it were your niece going to Iraq? Would you still support the war?”

Liberals, at least in my experience, love this rhetorical approach. (Think back to 1992, when Larry King asked Dan Quayle, a staunch pro-lifer, how he would react if his daughter became pregnant. Or just listen the next time the ladies on The View harangue a conservative guest.) The problem is that it’s a logical non sequitur clothed in self-righteousness. In the first place, it switches the focus of the conversation from the debate topic to the personality of your opponent. Suppose, for example, I had said that I would oppose the Iraq War if my niece enlisted. That would prove me a hypocrite. But it would have no bearing whatsoever on the strength or weakness of my rationale for supporting the war.

In the second place, the how-would-you-feel-if-it-happened-to-you maneuver posits that strong emotions should sway, or even override, rational analysis. My colleague assumed that if I were more emotionally invested in the day-to-day bloodshed in Iraq, I would likely come to a more (in her view) sensible conclusion about its legitimacy. But this is exactly backwards. Sensible conclusions are clouded, not clarified, by strong emotions. Indeed, civil society is possible only when individual feelings are subordinated to the need for collective order. For example, if a guy mugged my 86-year-old mother, I might well want him dead. But that doesn’t mean that mugging should be punishable as a capital crime or that my current opposition to the death penalty is wrongheaded. It merely means that, under dire circumstances, my gut response might get the better of my intellectual judgment. It is in moments of emotional extremity that the distressed citizen most requires the collective inertia of the state.

Still, the idea persists on the political left that individual passion is what counts — perhaps because passion cannot be refuted. Rational arguments, by contrast, can. Rational arguments are objective, reproducible, and subject to perpetual scrutiny; passion is inscrutable, idiosyncratic, and justified in and of itself. That makes it especially popular among bubble-headed celebrities who can’t formulate a logical case for what they deem right and thus justify their engagement by declaring that they’re “passionate” about a cause. (You know, the way George Wallace was passionate about preserving segregation, and Ted Kaczynski was passionate about restricting land development . . . and, if it’s not too soon to mention, Scott Roeder was allegedly passionate about ending late-term abortions.) If you feel something long enough, or poignantly enough, you must be right.

Which leads me, in a roundabout way, to President Obama’s nomination of Judge Sonia Sotomayor to the Supreme Court — and to her now-notorious remark about Latina judges and white male judges. “I would hope,” Judge Sotomayor said, “that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

On the basis of those words, some conservative commentators have called her a racist. The charge of racism, however, has long since been emptied of coherent meaning, so it serves no purpose to level it here against Judge Sotomayor. To call her a bigot or a chauvinist is closer to the mark. How else to account for the suggestion that the richness of a Latina woman’s experiences somehow confers more wisdom than the richness of a white man’s experiences? (Unless of course Sotomayor also means that, in certain cases, a white male judge would reach a better conclusion than a Latina woman — a proposition that cannot even be uttered in polite society. But then again, Judge Sotomayor did not say that the Latina would always reach a better conclusion, only that she would “more often than not” do so.) But all of this ultimately glosses over the deeper problem with Judge Sotomayor’s words. That problem is contained in the phrase “with the richness of her experiences.”

To argue that your interpretation of the Constitution should be rooted in, or even colored by, the richness of your experiences is to argue that your feelings should direct your intellectual judgment. Or, in other words, the particularities of who you are should trump the universality of your rational nature. So if your logical understanding of the law is compelling you to a decision that you feel, in your gut, is wrong, you will naturally fall back on your emotions; empathy, rather than strict adherence to interpretive norms, becomes the final arbiter of judicial temperament.

But, again, this is exactly backwards. As Alexander Hamilton wrote in Federalist 49, “it is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government.” The function of the government is to keep in check the passions of the people, to ensure that reason literally overrules emotion in collective action. The judicial branch is paramount in this process. Supreme Court justices are appointed for life terms, not only to insulate them from undue influence by the other branches of government, but also to distance them from the strong emotions of the people. Unlike the president and Congress, who are answerable to the electorate, Supreme Court justices can render unpopular judgments based only on loyalty to the Constitution. The Supreme Court, in short, must be the least empathetic, and the most dispassionate, of the three branches of government. Or else it is a redundancy.

Judge Sotomayor, with the richness of her experiences, would no doubt make a superb teacher or lawyer or psychotherapist. Or perhaps even a superb politician. But if she believes that the richness of her experiences makes her a better judge, then she should not be confirmed as a Supreme Court justice.

– Mark Goldblatt writes from New York.


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