Friday, 15 May 2009

More Gleaming Robo-Judges, Clutching Thumb-Screws

The war against empathy continues, courtesy of Alberto Gonzales.
Well, I think everyone wants to think that their government officials are kind, compassionate people. And I think someone having that kind of image is certainly helpful in a confirmation hearing. I do worry a little bit, well, I worry, I worry about about justices on the court making decisions based on what they think makes them feel good. I don’t think it’s fair to expect society to anticipate the outcome of a case based upon what makes a justice feel good. In essence what you’re saying, I think, is that I’m going to, I don’t care what the law says, I’m going to come out, I’m going to pursue an outcome that I think is fair and just. I’m going to rewrite the law. And I think that’s dangerous and so, again, I agree that we want our justices to be compassionate, to be kind people, but I think their job as a member of the court, quite frankly, is to apply the law and I think the notion that we worry about the outcome. You know, I served as a justice on the Supreme Court of Texas and sometimes I reached decisons (sic) and I didn’t like the outcome, but I felt that I had a duty to my oath of office to respect the words of the statute that I was interpreting.
It's worth noting, of course, that his duty to his oath of office didn't appear to trump his desire to tell Bush whatever he wanted to hear, of course, and that he's either lied to Congress of has a memory so full of holes he shouldn't be allowed out of the house alone, but that's beside the point. What bothers me is that Gonzales apparently thinks that empathy is equivalent to "what makes you feel good", a trait by which someone ignores a law that he disagrees with, rather than a method by which one's opinions are formed by more than what you believe at any given time. (it's also insulting that he assumes empathic people are less capable of following through on decisions they don't agree with, rather than just having a different criteria of what constitutes an agreeable decision).

Dahlia Lithwick makes the point that the opposite of empathy "isn’t rigor. It’s pretty close to solipsism... " [2]. Moreover, Gonzales' implicit argument that he's worried about conflicts between the letter of the law and fair and just outcomes says far more about his own view of the justice system than it does about anyone who approaches the job with a degree of empathy. Gonzales is well aware, as are (hopefully) all legal professionals that the laws of the USA or of any other country require interpretation when put into practice. Part of the reason he knows this is that he interpreted the Geneva Convention as not applying to the inmates of Guantanamo Bay, a decision which (along with others) led to him being forced to resign as Attorney General [2]. So he realises you need to bring your own interpretation to laws, he's just worried about someone doing it from the perspective of wanting a fair and just resolution.

In truth, as S. Spielbergo noted not long ago, there is a genuine discussion to be had here as to how important empathy is independently of other qualities, and how empathy can be most wisely applied. That isn't what we're getting, though. It is entirely reasonable to suggest that whilst we want our judges to be fair, we also want them to follow established law, and we need to make sure the two aspects to the job are balanced. That isn't what's being suggested, though. It's just the typical bullshit conservative reaction to an attempt to value a property which is supposed to be at the core of our society.

[1] Check out the link for a quick list of the various other conservatives making similarly irritating comments. My personal favourite is probably Steele: "Crazy nonsense empathetic! I'll give you empathy. Empathize right on your behind", because it's both belligerent and grammatically incoherent, but Hannity's claim that this will lead to "social engineering" comes a close second. In fact, Lithwick comes to the conclusion that these people are mistaking "empathy" for "bias towards people without money or power" (as oppose to bias to people with money or power, which is entirely OK, obviously), which is an interesting suggestion, that I don't feel particularly inclined to disagree with.

[2] Interesting side note, a motion to determine whether Gonzales "no longer [held] the confidence" of the Senate and American people was put forward in the Senate, and the Republicans tried to filibuster it. I mention this because of my earlier comments of filibustering, and the sheer idiocy of claiming that said rule should be employed to ensure an AG can only be censured if he's lost the confidence of 60% of Senators or more.

Also, note what's happening here. A man forced to resign, in part, for deliberately approaching the Geneva Convention from the perspective of trying to minimise the rights of combatants (or suspect combatants), and maximise the options for their interrogation, is telling us that when choosing people to interpret the law we need to be careful of people who care what effect their choices will have on others.

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