I picked Dr L up from the airport on Monday, and on the way home I discussed the Sotomayor/empathy issue, figuring a psychologist would have an interesting take on the subject.
Dr L didn’t disappoint. The first thing she pointed out was that, on average, women display greater degrees of empathy, and are less likely to adhere to the strict letter of a system of rules when determining how to deal with infractions. I asked the obvious question: is there a causal link between the two, and she (tentatively) answered in the affirmative.
It was this exchange that crystallised my problem with the whole situation [1], and with American conservatives in general [2]. The hasty conclusion to draw here is “Well, maybe empathy is a bad idea in judges”. No-one wants the law to be made up on the spot, right? [3]
This is the kind of conclusion that drives me mad, though. It’s the sound byte comeback, the postage-stamp response designed to act as a roadblock in your head, that stops you having to consider wider implications.
Bad arguers excel at this sort of thing. They take a tiny sliver of the overall situation, find an easy counter to it, and consider the case closed (this is sort of like building a straw man, but not entirely the same). The fact that there are surrounding concerns, important contexts, knock-on effects, are all ignored for the sake of a quick conclusion.
In this case, for example, you have to ignore the fact that Obama mentioned empathy as one of a number of qualities a good judge should have. Empathy might lead you to throw away the rulebook, huh? What might stop that? Significant experience? Wisdom? Gosh, Obama said he wanted those too! It’s almost as though he has a whole package in mind, and any individual part of it wouldn‘t be enough!
This is an old GOP trick, of course. Remember when McCain lambasted Obama for days [4] during the Presidential campaign because he’d said inflating your tyres more regularly would help the environment? Obama had offered it as one small and immediate example, but that didn’t stop McCain portraying him as a man who thinks tyre pressure causes environmental catastrophe. Take a sliver, find a counter, move on.
Aside from the fact that it’s a poor tactic logically, and that it can be employed (probably subconsciously) to justify opinions and behaviour that any holistic, dispassionate view would deem unacceptable, the main danger with this procedure is that it allows mutually exclusive views to be held, because no attempt is ever made to connect them. Again, there is a perfect example in the Sotomayor debate (and it annoys me someone else had to point it out to me). There are conservatives in America simultaneously arguing that empathy is bad because it will lead to a judge ignoring (or bending) the strict letter of the law, but also that Sotomayor is a bad judge because during the Ricci case she made a ruling that was almost certainly technically correct but was arguably quite unfair to a white plaintiff. So you take one sliver of the discussion over Sotomayor’s nomination: is empathy bad, and conclude yes, because the law is not to be ignored just because a judge feels applying it would be unfair. Then you take another sliver: is Sotomayor biased towards Hispanics/against white people? Yes, you conclude, because in Ricci (a case in which the plaintiff claimed he was being discriminated against on the basis of race) she applied the law impartially in a way that many consider unfair.
If we were being cruel, we could suggest that this is proof that these people are fine with empathy, as long as white people are the beneficiaries, [5] but I don’t think that’s what’s happening. These people simply don’t see the need to consider anything but what’s right in front of them, so the contradictions are never made clear to them. It’s how you can claim it’s critical an investigation is unleashed to uncover the nature of Nancy Pelosi’s briefings on torture, but claim investigating the torture itself would be the behaviour of a “Banana Republic”.
In short, it’s an enabler for hypocrisy. And I hate hypocrisy. I loathe it, it makes my skin crawl. Naturally, since I am a hypocrite, that means I hate myself a good deal of the time (I refuse to be hypocritical about hating hypocrites). Despite being one myself, though (and someone once wrote “A hypocrite is a person who - but who isn’t?”), I think it’s fairly uncontroversial to suggest it’s something we should work to excise from our behaviour. The “sliver” tactic, on the other hand, may not have been designed to allow hypocrisy to as hard for the individual thinker to detect as possible, but it certainly fulfils that role very, very well.
[1] Actually, I have multiple problems;why it's OK to assume that a Latina judge must have been unfairly advantaged by positive discrimination; how someone can argue a woman shouldn’t be allowed to be a judge in case she adjudicates an important case whilst on her period without them being cast out of national politics; where people get off suggesting pronouncing "Sotomayor" the way the woman herself does is somehow an unacceptable assault on the English language, etc. etc. etc.
[2] In fairness, my problem is with a specific arguing style, the fact that I observe it so much more frequently in American conservatives than anywhere else is probably selection bias.
[3] With regard to this point, I should mention Dr L also reminded me that our justice system is somewhat more tolerant of judicial interpretation than is the American one (to what extent this is due to their reliance on the Constitution is an interesting question that I am thoroughly unqualified to discuss, not that that usually stops me), and so the argument that empathy may lead to “judicial activism” has an extra hurdle to overcome for me anyway, in that I‘m not sure how bothered I am by the idea of that happening in any case. I like Dr L. Arguing with her is fun.
[4] Clinton joined in, admittedly, because Clinton (or Mark Penn, depending on how you look at it) ran a very poor and at times despicable campaign.
[5] While we’re on this subject (again, and I‘m presenting this bit separately because it doesn‘t involve the sliver method), though, even on it’s own narrow terms, the argument that empathy is bad because it might lead people to not follow the law seems insane. The only way that argument can hold is if every legal decision is logically obvious. If that were true, we wouldn’t need appeals courts. Moreover, if it were true, then it wouldn’t matter one little bit what the ideological bent of the judge in question was. And it follows from that that all the effort Bush went through to stack courts with conservatives was a waste of time, and trying to block liberals from the bench is a waste of time. Since Bush did go through the effort, and the GOP are still trying to keep liberals out of the judiciary, we can assume that they know that isn’t the case. This argument about empathy being a reason to assume a judge will ignore the law is a smoke-screen for a much more interesting argument about what criteria should be used when the law is ambiguous. And wouldn’t you know it, conservatives want conservatives making that decision. Rather than admit this, of course, they pretend the decision doesn’t exist at all. If anything, this is worse than the sliver method, because the contradiction is obvious within the argument, rather than between two arguments on the same subject.
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