Friday, May 22, 2009

JUDICIAL EMPATHY

FEELINGS

I had Posted here recently about Obama’s exhortation for judges to have “empathy”. A week or so prior to that, I had Posted about the concerns arising with ‘women’ (as opposed to ‘females’) as candidates for the judiciary.

Ellen Goodman has now rung in with a column entitled “What’s bad about empathy?”.

I want to say something about that. And not because I’m over-focused on the issue, but because it is an issue close-in to the heart of the matrix of problems bethumping Us as a Constitutional polity; and in my view, if We lose the Constitution and the Republic, then whether or how We come out of the fiscal crisis and how things work out on the Eastern Front and in the Middle East and just how big a slice of the pie each of the Identities gets … these things will not matter. These things will not be the Matter upon which Our stewardship of the American Experiment will be judged. And judged by generations who will not so much be standing on Our era’s shoulders, as wading through the swamps that overflowed everything that We had inherited and were supposed to pass along.

Lady Justice, snarks Goodman, need not wear a blindfold, because she is programmed by patriarchy in her very core, and the blindfold changes things not a bit. Objectivity is a myth, We recall the feminists*saying; ‘facts don’t matter’, and reason and reasoning are merely patriarchal ploys to keep everybody else oppressed.

Men, We might recall, are from Mars and women are from Venus, as the catchy title has it. In a sleazy comparing of the best possible of one with the worst possible of the other, this works out to men being violent but also coldly heartless, rational oppressors, while women – the script goes – are warm, caring, intuitive, peace-loving ‘feelers’, everywhere oppressed but morally and humanly superior. It’s cartoonish, but the terms of Our national awareness (there is little deliberation or debate) have been debased by the feminists’ own ‘revolutionary’ methodology of simultaneously undermining the public’s capacity to think while stampeding public opinion with ‘emergencies’ and ‘epidemics’, vividly and almost and almost cartoonishly presented, and all caused – but of course – by ‘men’ and their patriarchy.

As if she had been elsewhere in the galaxy for the past several decades, she notes flatly that “We’ve already had preemptive strikes against three women on the media short list”. We, the lumpenvolk, are expected not to recall numerous prior instances where persons being considered for public office are examined as to their sensitivity to the correct concerns and agendas; scorecards and ratings are even provided by the correct watchdog groups.

Yet Goodman calls this a “scary radical” treatment.

But she has something there. As I said in a prior Post (linked above), while there is no problem with a female being on the Court, there is much more problem with a ‘woman’ being on the Court: she would either be a feminist cadre herself, or she would find herself sorely bethumped by feminists who expected her to avoid becoming a ‘gender-traitor’. (Yes, Goodman will piously intone that a ‘woman’ will be empathetic to all the oppressed, but beneath the sheepskin there is the fang of feminist correctness: she will be expected to further the revolution’s agenda.)

Goodman snarks on: “More bizarrely” (she really does want Us to think she’s been elsewhere for thirty-five years, and is honestly ‘shocked, shocked’ by what she’s just now discovering) "we have a full-throated campaign targeted against any candidate who might have a deep, dark secret buried in her resume. She may have, gasp, empathy.” Snark to the max. You go, Goody!

The main trouble here is that ‘empathy’ as it’s being deployed in all of this has a major drawback. It’s a code word. It is not what it appears to be. It’s a ‘portmanteau word’, a suitcase filled with all sort of things, and even with secret compartments to stuff darkling things where only the most persistent inspection has even a chance of discovering them.

It’s a code word for using a form of ‘feeling’ to undermine and override ‘patriarchal’ and ‘oppressive’ reason, which is that male thing. In the service of the ‘revolution’, those cadres and collaborators who ‘get it’ must use every weapon to destabilize and delegitimize the strengths of the target ethos. ‘Feeling’ will be deployed to undermine the male, patriarchal ‘Reason’ and ‘Thinking’. That’ll show the guys!

The crucial – profoundly and unutterably vital – problem here is that Reason, as Locke pointed out, is the heart of Law. Any ‘laws’ that are not based on well-reasoned thinking run a huge danger of creating vastly more problems than they solve, if they solve anything at all.

This is not at all to say that a Supreme Court and its Justices should be robotic thinking-machines, narrowly reasoning with no consideration for the wider world beyond their legal pads, law libraries and conference rooms. But it does mean that part of formulating law is to consider the integrity of the entire tradition. (You can see the problem here: the feminists are absolutely convinced that the entire American legal tradition – starting with the Constitution – is a product of patriarchy and thus needs to be – ummmmm – replaced. As your old Parris Island drill instructor might helpfully yell into your ear: Yooooooo-Hooooooooo!!??!!)

Can it be too much of a surprise that We are seeing so much dysfunction in Our polity nowadays? The entire rule-of-law is being undermined. Nor did Bush – that egregious frak – think this all up on his own. Nor did Darth Cheney and the other Sith lord-lets who until recently ruled in Washington City.

But another vital part of a Supreme-level analysis is to look at ‘consequences’ (especially since Congress, eager to keep its voting-blocs happy, has pretty much stopped doing it before it passes laws).

I have been reading such minutes as I can find online of the deliberations and Hearings leading up to the Violence Against Women Act of 1994. I get the strong impression that the legislators involved, and the attorneys and experts in favor of it, were simply looking for any ‘hooks’ or conceptual ‘cover’ that would support what they had made up their minds should be done. Potential problems, some of them large indeed, are raised by competent professionals – the national association of Chief Justices of States among them – but are pooh-poohed as stuff that can be ‘worked out’ later, after the law is passed.

The Supreme Court, deals not with trying and finding ‘fact’ but with judging laws that will introduce – individually and as part of a series of laws – sweeping policy changes, often by the acceptance of what seem to be ‘small’ and ‘reforming’ changes in legal practice. Consequences are something that need to be considered, since legislators are no longer doing that bit.
And by now, with decades of unexamined laws on the books, a reliably ‘correct’ Justice need only continue to assert ‘feelings’ as a way of short-circuiting further examination.

And there will be, I think, more cases coming up that will require careful analysis; more and more of the revolution’s ‘reforms’ have now been in place long enough for their baaad consequences to become clear.

Goodman herself gets a little ‘rational’: “Empathy”, she lectures, “is not sympathy”. True and well said. Empathy is the ability to stand in the shoes of others and see things from their point of view. True again.

“It doesn’t require that we take sides.” Well, this starts to shade into the shady. The ‘revolution’ has polarized matters by the very essence of its plan and methods; why else is a reliable Court required? A Justice must not be swayed by ‘abstractions’. A Justice must ‘hear’ the ‘stories’ (and ‘stories’ they indeed are, far more than We would like to think) and, ‘getting it’, go with the ‘story’ over the ‘abstraction’.

Given the vividly drawn now-‘classic’ narratives of victimization, and heaps of frightening ‘statistics’ that are so monstrous as to create an emotional stampede that will preclude a closer look at their dubious accuracy, a Justice must reliably allow him/herself to be suitably ‘empathetic’ and toss every other consideration out those tall, marble-framed windows.

Is it a good thing to “recognize another person’s reality”? Absolutely; a genuinely ‘liberal’ citizen should be doing that a dozen times a day. But it’s also essential, given the high stakes, to skeptically consider whether the ‘reality’ you’re being presented with is actually real.

And then on top of that, to consider whether that person’s reality – however vivid and moving – justifies whatever it is that the story is being put forth in support of.

Nor can it be forgotten that after decades now, there are Americans in their 30s and 40s who have been brought up with a very blurred conception of the boundaries between ‘my reality’ and ‘reality’ (let alone ‘Reality’).

Nor does ‘recognizing’ somebody’s reality mean that one must grant it primacy over all other considerations. This has been one of the great misfeasances of ‘victimism’: I am in pain and anything less than giving me what I want is simply to re-victimize me all over again. Recall – and most folks may not realize how profoundly biting a satiric comment it was – Cleavon Little’s black sheriff in Mel Brooks’s 1974 “Blazing Saddles”: he held his own gun to his throat and threatened the (threatening) townsfolk that if he didn’t get what he wanted, the sheriff would be shot then and there. And the townsfolk were stymied, stopping in their tracks.

Goodman tells a story: in a recent Supreme Court Hearing in the matter of a young female teen strip-searched in a search for drugs, “Justice Ruth Bader Ginsburg remarked that she was the only one on the bench who knew what it was like to be a 13-year-old girl”. Well yes, But no. So what? This is the type of ‘trump line’ that draws oohs and ahs at klatschy Chablis-soaked sharing sessions, but is it really necessary – or relevant – that a Justice have that experience? Where does that sort of thing stop? And, surely, an ‘empathetic’ Justice – and I fully support the competence for genuine empathy - can enter into the ‘reality’ of those whose cases wind up before the Court.

Goodman tells Us that “The truth is that we want judges who ‘get it’. The myth of justice as a matter of pure objective reasoning that could be meted out by a computer is just that, a myth.” No Justice can be, or should be a computer – we don’t want computers driving our buses and flying our planes.

But I think she gives the game away with that ‘get it’. That’s the codeword and byword for the feminist cadres: if you ‘get it’ then you are reliable because you accept that the revolution’s ‘truth’ and the revolution’s ‘reality’ are the only truth and reality. This a dark and dangerous and fatal road, and the modern world has been down it before. And in the 20th century, as the American experience demonstrates so chillingly, each time We recover from a trip along that revolutionary road, We come back a little less robustly a democracy and a Republic. We fought the Kaiser and became a bit more of an empire; fought the Nazis and became a bit more like a Reich; beat the Commies and became a whole lot more like a Leninist revolutionary state, replete with brassy and gimlet-eyed cadres, entrenched government apparatchiks, ‘evil classes’ that must be contained, and a government police-power that crunches ever more deeply into the lives of its citizens, their minds, hearts, hearths, and homes.

Now the feminists want to continue their ‘revolution’, and claim that they’re simply stepping up to the plate for ‘feeling’ as opposed to robotic ‘thought’. If I thought that We could get the best of the feminist vision by simply eradicating the worstly-conceived ‘male’ tradition, then I’d sign on.
But that’s an illusion. A delusion. A lethal and, to a Republic, a fatal delusion. It’s a delusion that is a necessary delusion for the adherents of the feminist ‘vision’ and ‘plan’.

I can empathize with them, even step into their shoes. But I can’t walk down their road.

I want a Justice who is both empathetic and capable of thinking deeply and widely. And I want a genuine empathy: just as I don’t want a shill for the corporations who hides behind ‘empathy’ for them, I don’t want a cadre for a revolution that has already wrought so much wrack.

NOTES

*There are, you recall, ‘equality feminists’ and ‘gender feminists’ or ‘ideological feminists’. The equality-feminists are closest to an ‘American’ way of proceeding: they have some excellent insights and legitimate concerns, and they can explain them, and they want to get their ideas ‘out there’ so that We might hear them and see what might be done.

The ‘gender (or ideological) feminists’, far more indentured to the more radical feministical illuminations, are ‘revolutionary’ not only in the content of their agendas, but also in the method of getting them established. They believe that a) men are by nature violent and evil; that b) ‘women’ are always victims and ever in-danger because of them; and that c) neither ‘men’ nor the benighted women who love them should be given the space for playing-out their sorry lives.

Worse, in terms of method, they are committed to the Leninist ‘revolutionary’ concept of ‘elite cadres’ who ‘get it’, organizing for the purpose of imposing their visions on an essentially brutish lumpen-citizenry, by-passing public deliberation using manipulative ‘information’ to create ‘emergencies’, and using ‘reliable’ judges and vote-desperate pols for their purposes.

In this Post, I will use ‘feminists’ to refer to ‘gender-ideological feminists’; if I refer to the more moderate feminists I will use the term ‘equality feminists’. Additionally, I remind you that I do not presume that ‘feminists’ actually represent all of the females in America, or even the majority of them.

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