THE SOTOMAYOR NOMINATION

EMPATHY

What’s up with ‘empathy’ in regard to the Sotomayor nomination to the Supreme Court? (See here, and here, and here.)

I’ll take a competent, mature, adult as a Justice on the Court – gender and ethnic background don’t matter.

I don’t feel comfortable with any Identity-lobbies pushing for one of ‘us’, one of ‘our’ agents on the Court. But then, such lobbies don’t actually care for the American ‘identity’; what I capitalize as We and Our is not something they think actually exists, or deserves to exist. And that makes me nervous as all hell.

Now comes the ‘empathy’ brouhaha.

I need to kick this tire.

My concern is not with ‘empathy’ itself. Actually, the ability to empathize is one of the hallmarks of a mature adult. The ability to put oneself into another’s place imaginatively is very much a frontal-lobe skill; as is the ability to then assess the matter at hand from that ‘other’s’ point of view, carefully and critically. And then see how such assessment fits with the overall commonweal and the requirements of the fundaments of the American polity and ethos. And then decide.

But of course, far too many lobbies within the Beltway are now firmly convinced that the American ethos itself, and even its Constitution, are so thoroughly shot through with – you name it – problems that they are incapable of serving as constitutive blueprints or operating instructions. And don’t deserve to continue receiving any respect.

They are simply ‘texts’ – as the literature-department cadres claim – and as such not even their authors’ intentions really matter; it’s all about what any particular reader or bunch of readers decide to take away from such ‘texts’ today, nothing more. You might legitimately wonder whether the blueprints and operating instructions that come with a 747 are such ‘texts’, and what the elite literature-department honchos and honchesses would say if they got onto a plane to go to some conference and found that the pilot and the airline treat the manufacturer’s operating instructions merely as ‘texts’.

O brave new world!

Of course, Geordie – marquis Chief Engineer on Picard’s oh-so-1990s starship Enterprise – was constantly tinkering with that marvelous vessel’s systems, making improvements that even the designers and builders hadn’t thought of. But then, Geordie knew the difference between making an improvement and ripping away a crucial system or structural member altogether. I don’t think Picard, even if Geordie’s plan got support from the ship’s busty ‘empath’ adviser, would say Make It So if Geordie opined that the whole ship was too rigid and needed to lose a lot of basic stuff that was ‘oppressing’ its potential. There’s ‘improving’, there’s ‘deconstructing’, and there’s deliberate suicide – and the boundaries require some careful discernment.

One of the great fault-lines in the past four decades or so has developed in the area of ‘feelings’ as opposed to ‘thought’, ‘feeling’ as opposed to ‘thinking’.

Hardly a coincidence when a revolution is seeking to overthrow an established system, the big hoo-hah has been for ‘feeling’; don’t think, just ‘feel’ – and then just do it. The details can be worked out later. (And can you say War In Iraq?) ‘Thinking’ is really only a mask, a tool in the service of ongoing ‘oppression’ – and as such must be swept away, as the cadres’ assertion goes.

But genuine thinking – so profoundly human a capacity, and so crucially necessary – takes all aspects into account, and carefully assesses. It is serious, deliberative, and necessarily deliberate. (And yes, that “with all deliberate speed”* might be read as a code for obstructionist stubbornness, but it also might be an indicator that somebody realized just how frakkingly complex and fraught a situation was, and how carefully it had to be dealt with, to avoid causing even greater damage).

And genuine feeling – so profoundly human a capacity, and so crucially necessary – complements thinking, adding a humanizing element to the assessment, accepting that purely rational and logical schematics cannot do justice to the complex, dynamic, often unquantifiable dreams, aspirations, desires, and assorted emotions present in every human being and in every human society.

The purported either-or opposition of ‘thinking’ and ‘feeling’ is a cartoonish non-problem, similar to the cartoonish assertion that ‘we goooood, they baaaaad’ – which has wrought so much catastrophic damage domestically and overseas of late.

So I agree with Obama that ‘empathy’ is an essential element in a Supreme Court Justice.
But I am verrrry concerned that ‘empathy’ is yet another secretly-redefined code word to cover up the old revolutionary ploy of stampeding everybody by getting them to forego ‘thinking’ and instead to rely solely on ‘feeling’ – at least as long as what a Justice ‘feels’ happens to conform to the revolutionary agenda.

The ‘rule of law’ is a phrase with a huge history. The Framers knew very well what they wanted to avoid: being on the receiving end of the King getting up in a bad mood one morning and ‘feeling’ like he wanted the following list of persons arrested, their property confiscated, and the persons and even their families imprisoned or beheaded. In a cruel irony, the Russians disposed of the Tsar – who did such things only rarely – and instead wound up with Stalin doing such things on an industrial scale, by the millions.

To demand that the ‘rule of law’ is just part of the toolbox of ‘oppression’ and thus is an infamy to be erased forthwith, is a very uninformed assertion.

To have judges who serve ‘feeling’ and not the rule of law is a recipe for utter disaster. For a regression to Stalin and to the French Revolution’s Terror before that, and to thrice-a-thousand autocrats and divine-right crowned heads before that, into the Dark Ages and all the way back to the Roman emperors and beyond them. Because ‘feeling’ doesn’t exist as a free-standing entity; it will serve something or someone, whomever the ‘feeler’ serves. And whatever ‘values’ the ‘feeler’ holds.

This is, I’m thinking, one of the great problems in American law schools now. They’re teaching this sort of thing as a Plan, as a good Plan, as the only Plan. It cannot end well – certainly not for the Framers’ vision of Constitutional democracy and a Republic.

I don’t know where the nominee stands on all of this. She’ll have to say things publicly, but you can’t always trust those ‘confirmation hearing’ assurances and declarations, really. Didn’t I just read in the past week that in 1999 Bush confided to some local Texas reporter that if elected he would invade Iraq?

The media didn’t pick up on it. Oh well. Stuff happens.

NOTES

*The Supreme Court’s instructions as to de-segregating schools in Brown v. Board of Education.