NEAL GABLER AND NATIONAL EMPATHY

NICE BUT NOT SO FAST

Neal Gabler, always a worthwhile read, joins in the discussion about empathy.

Characteristically, and impressively, he hopes that this present go-round about empathy will somehow jolt the national discussion beyond the Left-Right, either-or, divide. From his lips to God’s ear. This juvenile form of mental processing – either/or – has become the hallmark of a powerful national decline for quite a few decades now. And – Gabler will sicken to hear it – it has been induced as vigorously by the Left as by the Right, upon both of whose houses be a plague because of it.

This is, I say, the key national decline: the hugely diminished capacity of the citizenry to process information maturely, to sift and assess it, to deliberate, and thus to arrive at a substantive conclusion that they can then transmit to their (ideally listening) elected representatives. Only in this way can people function as The People.

And as I’ve pointed out on numerous occasions here, if there is no People, there can be no Constitutional government – or, for that matter – no Constitution. Why, after all, have an instrument that respects and protects The People if there is no People? I half expect that this is the strategy of far too many Beltway lobbies: that they will continually erode the competence of The People, under the guise – of course – of ‘sensitivity’ and ‘liberation’ (you know, like the Hippies said about pot and free luv) until someday, satisfied that there really isn’t much of a People left, they will simply announce that the Constitution is ‘quaint’, that it is all a part of a now-past American history irrelevant to present realities, and the Founding vision and its instrument will die with a sensitive whimper rather than the bang of a Commie thermonuclear detonation. You think you have nightmares?

But Gabler hobbles himself soon into the run: he likes liberals and liberalism and so he has to think that the whole thing is the Republicans’ and the Right’s fault. To hear someone blame the Right totally for the parlous condition of the national moral and conceptual Competence calls Us to revisit that marvelous historical scene where Mussolini, Il Duce, finally called to account before the Fascist Grand Council in July of 1943, blamed it all on … the Germans – I tedeschi sono responsabili da tutto. Alas, by that point, from Mussolini’s lips, nothing was going to be getting to God’s ear, or be admitted if it ever managed to arrive there.

The right-wing has a fascination with Ayn Rand’s self-absorption, he notes, as if dropping at a 1949 cocktail party the key equation of nuclear fission. The notorious self-absorption of the Left, We are left to infer, is simply – as the Left’s self-induced Bubble has it – rocksolid evidence of ‘liberation’, which is what the Left and the liberal has always been about. Ovvvvv coursssssse.

So the self-absorption of abortion-on-demand is really evidence of a mature liberation, or at least a liberation – since ‘maturity’ is in the eye of the beholder and, anyway, ‘morality’ and anything else that tries to limit your desires is simply ‘oppression’ and doesn’t exist in the first place? Or whatever – it’s my body and not yours and that’s all there is too it. Which is not so far from a rather acute expression of something kind of close to self-absorption. If you get my drift.

Bill Clinton’s speaks “in the immortal words” about we can feel your pain (Gabler identifies himself, and Clinton, as liberal). There is a great deal of Clinton’s record that should indeed be classified as immortal – but for the purposes of statutes of limitations. And ‘pain’ turned out to have been a ‘sensitive’ cover for self-indulgent emotionalism, the essence of Hippie fecklessness and pot-smacked whackery erected into a Plan by the vote-addled Dems (a game into which the Republicans later allowed themselves to be bought).

And then Gabler tosses in John Rawls*, the mushy thinker from bosky Harvard who provided benefit-of-philosophy to that Plan: when thinking about the poor, Rawls prayed, legislators and policymakers should imagine them in the worst possible situation (that’s ‘empathy’) and then make one’s impositions accordingly. That’s imposition, since the lumps of the citizenry just don’t get it and need to be ‘led’ by those of their elites who know better – which is as neat a précis of revolutionary and anti-democratic and anti-constitutional arrogance as you’re likely to find this side of Lenin‘s or Mao’s Tomb. And don’t laugh: wayyyy too many public intellectuals, pols, and jurists consider it – you should pardon the expression – gospel.

Gabler goes on to sermonize that this Rawlsian revelation “is the very source of political community”. Yes, empathy**is indeed a vital element in human maturity. But a) it is one thing for an individual to develop the advanced capacity for empathy, and another thing to turn a government loose with it – where it will too often turn out to be used as a nice cover for that government to shower bennies on its favorites. And b) since emotionalism has indeed been adopted as such a cover, it should be given strict scrutiny indeed when the pols have decided to impose gifts. And c) emotionalism, given a free rein and not seated in a mature human-ness, tends to run wild, like kudzu, or Tribbles – only more lethal.

But Gabler sees this as part of the problem: Republicans and conservatives (and I don’t at all equate the two) differ from Democrats and liberals (ditto) in that conservatives think that people are sort of evil and Dems (and Hippies) think that they’re kind of good – or at least groovy. This is a huge point. The Framers were of a generation that was exposed to two conceptual universes: an older Hobbesian assessment that human beings, left to their own devices, are selfish; and a sort of Lockeian or even Rousseauian confidence in the goodness of folks. (Locke was a little more circumspect about it; Rousseau went gaga – like a Hippy).

I’d note that the old Catholic tradition, predating the bunch of them, was that human beings were created in God’s image, but somehow flawed in such a way that they would act against that image within them (that image also constituted a core of their identity as individuals and as a species). So you were dealing with a complicated – binary, certainly – and unpredictably dynamic, perhaps even volatile, mix.

THAT is an awful lot of complication and dangerousness to put on any plate. And it is a powerful indicator that maturity – and sustained seriousness in developing and maintaining it – are utterly essential for any human. Or any human society. Or its government.

And also that since a ‘government’ is going to be composed of the very same members of that human species, then a government has to be handled just as gingerly and carefully; hence the checks and balances. And thus the emphasis on putting together a rational mechanism for somehow keeping on track all the fraught dynamics of human nature and the politics that those dynamics generate.

This is hell-and-gone from the ‘liberal’ approach of late, which has fallen in love with ‘big government’ even as much as – in Gabler’s cartoonish view – the ‘conservatives’ have.

It also remains to be seen how a large ‘welfare state’ can sustain an independent citizenry. Although this is not intended as a ‘trump’ thought, I point out that a citizenry in which a majority of citizens rely on ‘the government’ for their sustenance, and have come to accept that as a normal state of affairs, is a looooong way from achieving an independent maturity and a politically independent approach to kicking the tires of that government’s doings.

And I’m not talking here of the ‘safety-net’ welfare state of the New Deal but rather the Identity-era ‘entitlement welfare’ state. Because, for all its good intentions and appearances, it could not but have a baaaad effect in two ways. First, the government could ‘buy’ the voters thus entitled, and perhaps so reliably weld them to itself that it could be said to ‘own’ them. Thus, second, that the entire operational principle of a Republic where the government was answerable to an independent and capable People was undermined. From which flow the working dynamics of ‘imperial Presidency’, divine right government (from the Left or the Right) and the government – Legislative or Executive – as Lord Protector against fear, pain, and unhappiness generally.

Nor can We forget that the term “ordinary people” is no longer quite the badge of honor that it once was. You had only to look at the 1980 film of that name to realize that “ordinary people” no longer meant the ‘little people’, ground down under the heel of Robber Baronry and Social Darwinian industrial capitalism, sweating and unwashed, but sturdy in spirit and ready to do a day’s work for a day’s pay. No; now in 1980 the Dems would embrace ‘professionals’ with foreign sports cars and big houses in bosky burbs and even a desk-top computer at home. Things had changed. A real lot. And went on getting mushier from there.

Whether you have a Rightist desire to enforce a social conformity for the purposes of easier corporate control and an acquiescence in military adventure, or whether you enforce a social conformity so that those who ‘get it’ can impose upon the unenlightened masses the Correct way to go about the on-going process of civilization … well, that’s a hugely secondary question. Ayn Rand or John Rawls – either way The People are enfeebled.***

So are people basically ‘good’ or basically ‘evil’? The old Catholic answer was: both – as described above. But of course, you can’t whomp up a real good political ‘wave’ (or stampede) by such finely-tuned thinking. You need that either-or approach. Even if it doesn’t correspond to reality.

But the postmodern solution to that problem is that there is no ‘reality’, it’s all in how you let yourself ‘approach’ the ‘text’. This has some modest application in approaching a piece of literature – which is where it started. But to apply it more widely, out in the ‘real world’, creates the risk of serious frakkery. As I have said before, the rules for flying an aircraft, based on the immutable principles of aerodynamics, are not a ‘text’ – if you fly a plane by treating aerodynamics as a ‘text’ that you can change as you feel you wish, then you are not going to stay airborne very long. (More on this below.)

I’m suggesting – against the postmodern approach that the ‘liberals’ have applied to the Constitution, among other things – that the Constitution be seen somehow as purposely designed to correspond to certain principles, such that to screw too much with it is going to result in a rather decisive termination of the American Experiment.

Thus that the Framers, as serious and mature human beings rather than simply as ‘dumb, dead, white, oppressive, violent, rapist males’, did indeed construct the whole thing with an eye to principles that they – and a sizable chunk of Western Civilization before them – had found to be reliably in effect. Alas, Jesse, you were too quick to chant that ‘Hey hey, ho ho, Western Civ has to go’; it’s been happening, and the national aircraft, by amazing coincidence, is having a hard time maintaining course and altitude – indeed a reasonable observer might wonder if it is any longer in a status of controlled flight at all. Certainly, if the Beltway is the cockpit, we are well-advised to Be Very Afraid – and to do something about it.

Thus the ‘rules’ are not just some “theoretical category” which hem in the boundless ‘empathy’ of the bienpensant ‘liberal’. Gabler reduces the ‘conservatives’ to being “rulists” – in love with rules because they are anally retentive or they are afraid of goodness or because they haven’t got their groove on or because they just don’t get it or because they are hating-on life and people.

Whereas the ‘liberals’ are sensitive and empathetic types who aren’t going to allow any abstractions and the “theoretical category” from doing what needs to be done. Which is a neat, if nicely dressed, expression of the concept of revolutionary law and justice – which is hell and gone from the Western concept of the Rule of Law. In revolutionary justice no principles exist and no government is to be trusted – except the principle that the revolutionary government always knows best and therefore can do whatever it wants. Which is also not very far from the operating principles of Divine Right Monarchy.

Which We as Americans traditionally do not support. No revolutionary cadres, no divine right monarchs.

And – pace the victimist movement – no Lord Protector, whether of the Right (s/he will strike out preventively at whomever s/he divines to be an enemy) or of the Left (s/he will strike out preventively at whomever s/he divines to be a victimizer and bringer-of-pain). Either way, the American vision is being freakishly deformed.

And it is sophomoric to just say “rulists”. There are rules and then there are rules. For example: Trans-Planet Airways can have rules about what color uniform the flight-crews will wear, what color the planes are painted, and what the corporate logo will be. Then there are FAA rules about planes having to keep a certain distance apart in the air, and not landing or taking off without clearance from the tower. Then there are rules like Bernoulli’s, that flight cannot be achieved or sustained without air flowing up and over the leading edge of the wing and rushing down and over the trailing edge.

Three ‘rules’, but hugely different types, dealing with hugely different realities. Trans-Planet can change its colors to its heart’s content. It might lobby the FAA or Congress to change the spacing or clearance rules. But who in all creation is going to change Bernoulli’s Principle? Nor will it help either to find his bones and put them on trial and burn them – a medieval approach of only modest efficacy, nor to poo-poo him over a plastic glass of chardonnay as somebody who just doesn’t get it.

I’m suggesting here that the Constitution is more like Bernoulli’s Principle than it is like the company-colors choice.

For the past forty Biblical years, though, just about every ‘rule’ has been treated as just a thang about company colors and logo.

And this is especially dangerous in a society where so many have fallen under the influence of the Hippy-Rousseauian belief that ‘rules’ are just oppressive crap that ‘oppressors’ make up to ‘oppress’ everybody else. Yes, rules can be so abused. But that doesn’t establish that there are no immutable principles without which a society, and especially one structured along the lines of America’s Republic and its great Constitutional Experiment can long endure.****

Gabler is a very intelligent writer. He has a broad command of historical ideas and trends. But he has committed himself to the ‘liberal’ point of view (which as I am saying is not so liberal at all once you get to the nuts, bolts, and implementation of all that goodwill and good intentions and ‘empathy’ and assorted feelings). So he has to contort himself into all sorts of selectivity in order to say something significant that also passes ‘liberal’ and Politically Correct muster.

Which is itself an indication of just how frakked and whacked things are here nowadays.

And just how hard it has become to fix things, because to come up with a repair-plan you first have to have a clear and accurate idea of the damage that you’ve sustained.

And We have sustained a great deal.*****

NOTES

*I have Posted on John Rawls: March 30, 2009: "Rawls and Religion"

**I have Posted on empathy: June 8, 2009: "Sotomayor and Empathy".

***In this regard I can’t help but connect the following dots: Hitler’s Volk concept required a superior master race that therefore had the right to take whatever it needed; yet his Fuhrerprinzip concept required a Leader who could lead the dopey German people who otherwise would not rise to the occasion of their own greatness. This was a monstrous conceptual incoherence at the very heart of the Nazi project; it led to the totalitarian government control over every aspect of the citizenry’s life even as the citizens were in theory the ‘master race’.

And it exists here today in both Rightist (Ayn Rand, say) and Leftist (John Rawls, say) assertions of ‘greatness’, whether it be the ‘greatness’ of the nation (Rightist) or of the Identity (radical ideological feminism and victimism – the two are joined at the hip). Ach.

****An aerodynamically-oriented disagreement might be made that the stealth bomber and stealth fighter ignore Bernoulli. Those aircraft are, by manufacturer’s admission, not airworthy: they will not stay up in the air and will not fly unless their hugely complex set of onboard computers makes continuous adaptations every moment – lose the computers and no pilot can keep the things in the air.

And if, say, you let this ‘concept’ migrate into general legislative and governmental functioning, then you get a situation where the government regulatory and police apparatus must function minutely, constantly (and thus hugely invasively) in order to keep society operating under the impossible design that has been imposed. And that most surely is a recipe for Constitutional catastrophe, as perhaps We are beginning to realize now.

*****I don't include this following passage as a 'trump', nor do I agree with everything its author ever wrote or said. But it strikes a worthwhile note for Our time, I think:

"You cannot bring about prosperity by discouraging thrift. You cannot strengthen the weak by weakening the strong. You cannot help little men by tearing down big men. You cannot lift the wage earner by pulling down the wage payer. You cannot help the poor by destroying the rich. You cannot establish sound security on borrowed money. You cannot further the brotherhood of man by inciting class hatred. You cannot keep out of trouble by spending more than you earn. You cannot build character and courage by destroying men's initiative and independence. And you cannot help men permanently by doing for them what they can and should do for themselves."

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.

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.

JUDICIAL DISPASSION

LADY JUSTICE AND HER BLINDFOLD

Jeff Jacoby has written a column that tackles “judicial dispassion”. Good for him.

He defines it, nicely, as “the ability to decide cases without being influenced by personal feelings or political preferences”.

He then goes on to assert, accurately I would say, that it is “indispensable to the rule of law”. And that in the one sentence of the federal judicial Oath the point is expressed three times. And I would add that every sitting judge and justice should, upon getting up in the morning, take a moment , do nothing else, and repeat the Oath out loud to him/herself. Even when you’ve got a busy day packing to go shooting animals with a high-ranking member of the Executive Branch. Even when you’re packing to go give an address and get an award from some well-funded Advocacy group. Selah.

And whether you want to actually mean to enlist the aid of God (the Oath ends with “So help me God”), or whether in best modern and postmodern fashion you merely intend to rely on your own personal character and integrity and profound insight and integrity and good intentions … well, repeat the whole thing out loud anyway. Inoculate yourself against the giddy but queasy high of palling around with power, and against the equally queasy high that comes from being applauded by large numbers of folks who think that you (and therefore they) are ‘right and very clever’.

Fiat justitia ruat coelum: Let justice be done though the heavens may fall. Even if they fall on you for doing the aforesaid justice. Hell, call it Justice.

Jacoby continues: it is “the judge’s obligation to decide cases on the basis of fact and law, without regard to the litigants’ wealth or fame or social status”. That is “a venerable moral principle”.

Yes.

One wonders if “social status” includes such now-entrenched ‘reserved categories’ of “social status” as gender and so forth. Because if there has been one complication that has arisen in the past forty (Biblical) years it has been the displacement of ‘equality before the Law’ by all manner of mental and legal reservations. And the ‘philosophical’ assurance that there is no ‘morality’ to which any judge or law need answer; only political influence. And the fear of political consequences disadvantageous to one’s own status and one’s political and promotional future.

Ach.

I can’t help but notice that just as there have arisen all sorts of ‘reserved categories’ for whom the law must bend in favor, there have also now arisen assorted ‘reserved categories’ against whom the law must bend. That can’t be a coincidence. Concepts migrate, don’t they? And just as Tolkien’s Orcs were merely the darkling, monstrous copies of Tolkien’s Elves, so too the queasily totalitarian ‘disenfranchised categories’ arose as monstrous reverse-images of idealized ‘protected categories’ and classes. Ach. Oy.

Impressively, Jacoby goes on to quote Moses in the Book of Deuteronomy: “You shall not show partiality in judgment; you shall hear the small and the great alike … You shall not distort justice … Neither shall you be partial to a poor man in his dispute.” And this is, as I said, verrrry impressive. The unenlightened era of Deuteronomy saw that being ‘poor’ and being ‘the little guy’ did not automatically make you ‘right’.

No wonder that in the past forty years Advocacies have not much relied on Moses and Deuteronomy. The whole thrust has been to insist that being ‘oppressed’ – defined in a way favorable to the particular Advocacy’s constituency – means that a) you are indeed somehow ‘right’ and ‘good’ and that b) it is therefore right and just to bend the law on your behalf. The entire Rawlsian philosophical project presumes this and bulls forward to achieve the ensuing ‘vision’ of what a perfectly ‘just’ America would look like. Oy.

“Without judicial restraint there is no rule of law”. Bingo. The restraint part takes the shape of respecting the boundaries of one’s role and not going beyond them, no matter how well-intentioned you are and no matter how bright and sunny the uplands to which you seek to move the herd.

And the positive element of that responsibility for judicial restraint is to make sure that within those boundaries, you do everything in your power to make sure that you have all the accurate information you can get, and that you respect the accuracy where you find it, and truckle not to inaccuracy for the sake of any extra-legal ‘vision’ or out of any ‘good intentions’ and ‘higher considerations’. Your Oath is to be a judge, not a godling.

You are not, it is brutally and sadly true, helped by legislators who have already yielded their Oath to political considerations, passing all manner of lethal laws on the basis of verrrrry sketchy information and with no concern for larger societal or even Constitutional consequences. But you cannot allow yourself to ‘go along to get along’. If you think otherwise, watch “Judgment at Nuremberg” again. (They show that in Law Schools, don’t they? Didn’t you have to do at least one paper on it? Surely Spencer Tracy’s craggy Justice is not ‘quaint’ among those on the Bench … ? If so, kindly so inform Us, that We may make other arrangements for the Constitution and the Republic.)

In today’s ‘The New York Review of Books’ (not yet online)* a review of his new book quotes noted public intellectual and judge Richard Posner to the effect that a significant responsibility for the financial crisis lies with large banking institutions that could “raise large amounts of credit, in amounts and ways that can affect the entire system, without anyone taking account of, or feeling responsible for, the system-wide effects”. [italics mine]

Now this is a dot that cannot but be connected. For several decades now, in its sodden strategy of pandering to its politically-favored Identity Advocacies (who theoretically bring in votes) and its corporate, PAC-funding paymasters (who most surely bring in cash through the PACs), Congress has been setting a verrrrry baaaad example of precisely this failure to look carefully, seriously, and maturely at the “system-wide effects” (‘consequences’ is another word for that) of the assorted laws, from domestic-violence and sex-offense laws to the repeal of Glass-Steagall to the wars started in Iraq and Afghanistan.

And the ‘system’ at the heart of all of this is – not to put too fine a point on it – the Constitutional ethos itself, and the health of an actual democratic politics.

Nor can you imitate the Legislative Branch by figuring to smooth your path by giving those who demand special treatment whatever they want, while simultaneously giving those who demand more scope for untrammeled profit everything that they want. That is a lethal and repugnant form of ‘balance’, and it will end up inviting in numerous demons even worse than itself, and Our last condition will be worse than the first.

Jacoby is prompted to concern by Obama’s “empathy” standard. And rightly so (with all respect to what Obama is facing and what he is trying to accomplish).

Judges cannot be ruled by ‘empathy’. ‘Empathy’ is a ‘feeling’, and a key to many of Our most essential problems nowadays is that one’s ‘feelings’ are not and should not constitute a basis for the erection or administration of a system of Law and of laws.

Judges carrying out their tasks in such a fashion that ‘feelings’ outweigh ‘evidence’ has not had a good history. I wrote last year about the Salem Witch Trials, where those judges disregarded actual and factual evidence – even though English law was already moving beyond the medieval vestiges of emotionalism and ‘intuition’ – and killed a bunch of folks (legally, alas) in the process.

Worse, when what they did under the influence of their ‘feelings’ finally came to light, they had to resort to the destruction of the trial records in order to escape prosecution themselves. Which has a kinda very modern ring to it, does it not?

Empathy may come in the sentencing stage, certainly. But in the fact-finding stage a judge’s responsibility is to maintain a ruthless (yes, I mean it; though the heavens may fall) ascertaining of the truth and the facts of a case, in order to determine if the laws have been broken. And in trial judges, to ensure that the jury too, understands the purpose of the ‘trial’ stage of the proceedings.

‘Symbolic’ concerns – whether a particular finding will ‘send the right message’ – have no place in it. Surely, presuming that ‘facts don’t matter’ is an indisputably lethal virus to inject into the rule of law.**

As Thomas More responded when a friend urged him to use the laws wrongfully to preemptively discredit his enemies before they discredited him before the King: If I am chasing the devil and break all the laws down to catch him, but then he turns on me, what will protect me – the laws being all flat? It was some such awareness that prompted the Salem judges (minus one, Saltonstall, who resigned early in professional and moral disgust at how the proceedings were being conducted) to get rid of their own very trial records, to prevent being exposed and prosecuted, when ‘feelings’ finally subsided and truth was once again sought.

There was an external factor that stopped that ‘feeling’ stampede in Salem: Governor Phips, either out of decency or political prudence, sought review and authorization from the Crown for all the death-sentences being handed out. And the Crown, repelled by such reversion to primitivism and – face it – legal barbarism, evinced its most stern displeasure. And that was the end of it.

The dead, however, remained quite dead.

Once again, a perfectly good rule of thumb in one professional arena ‘migrated’ most improperly to another arena. Therapy must immerse itself in the ‘feelings’ of patients; and the good therapist must indeed ‘empathize’ with the patient in order to establish a ‘safe space’ in which both may eventually work on improvement (and not simply on ‘getting rid of’ such pain as the patient feels). Well and good. And the nation can use more competent therapists.

But a court of law, seeking to maintain the rule of law, has a different responsibility, and to carry out that responsibility, ‘feeling’ is not a useful tool; indeed, quite the opposite.

What have not helped one frakking whit are the migration of ‘therapeutic culture’ and especially the gender-feminist insistence that ‘reason’ and ‘fact’ are ‘patriarchal’ and ‘oppressive’ while ‘feeling’ and ‘intuition’ are liberating. While therapy has its rightful and necessary place in Our national activities, and while ‘feeling’ is an essential complement to ‘thinking’ and ‘fact’ in any genuinely mature adult, the idea that courts should therefore be concerned for ‘feeling’ and not ‘fact’ is nothing less than a pathway opened to a very dark, primitive, barbarous realm indeed. And one from which Western justice has only with much blood and terror managed to evolve. To urge ‘feeling’ in the fact-finding role of the courts is to invite a massive and monstrous legal regression.

And none of that will end well for Us as a society, a culture, and a Republic.

NOTES

*”How To Understand the Disaster”, page 4, in ‘The New York Review of Books’, Volume LVI, Number 8, for May 14, 2009.

**It can hardly be a coincidence that an American prison system which held about 90,000 inmates in 1933 today holds upwards of 2.3 million. A combination of gender-feminism’s war on ‘males’ erected into laws, plus victimism’s promise-to-remove-all-fear, abetted by legislatures and far too many courts, as well as the media, cannot but be significant elements in this huge increase; an increase which at this point is chock-full of ongoing adverse consequences to America as both a society and a polity.