The Fight Against Empathy

I'm very excited about the Sotomayor pick because, through really no fault of her own, the debate over her nomination has brought deep and important questions to the fore. Where does morality come from? From religious teaching? Or from experience? And on which do we base our laws?

Perhaps the most powerful argument Sam Harris makes in his books and essays about atheism is that religion too often ignores or condones human suffering. In a typical essay he writes:

Unfortunately, religion tends to separate questions of morality from the living reality of human and animal suffering. Consequently, religious people often devote immense energy to so-called "moral" questions -- such as gay marriage -- where no real suffering is at issue, and they will inflict terrible suffering in the service of their religious beliefs.

Extreme examples are all around us. From the parent who shuns a gay child because of religious teaching, to the abortion doctor assassin, to the devout suicide bomber. It is this jarring dichotomy between dogma and actual experience that is at the root of what Newsweek recently called "The End of Christian America."

This is not a new problem. It's an intellectual and emotional struggle that began even before Tevye banished Chava from Anatevka. And for most people, the human almost always trumps the teaching. The death of Matthew Shepard moves and angers us while Rev. Fred Phelps's citations of Leviticus are met with derision and a different kind of outrage. Any other response would be somehow less... human.

Clearly, whatever the source of our morality and our legal framework, it is tempered and refined by experience. Our sense of justice must be geared toward the diminishment of human suffering, right?

You'd think.

I've been surprised lately how conservative and Republican figures are positioning themselves against even the consideration of actual human suffering.

When discussing the torture memos in April, Peggy Noonan said, "Some things in life need to be mysterious ... sometimes you need to just keep walking," as if the crimes perpetrated in our name weren't worthy of examination if they threatened to undermine the authority of the state. Don't look at the suffering of (possibly innocent) prisoners, just keep walking... toward that shining city upon a hill.

And now, with the nomination of Judge Sonia Sotomayor to the supreme court, the right has adopted a strong anti-empathy position. In their view, judges must be Vulcan robots without the ability to see or comprehend the human cost of their judgments. Their experience and the experience of their families is irrelevant (unless it's Sam Alito's immigrant ancestors or John Roberts's Beaver Cleaver household). To acknowledge the truth - that the scope of one's experience helps determine the scope of one's sense of fairness - is "reverse racism."

This position, that to follow the law -- religious or constitutional -- one must disregard suffering is not only bad political strategy, but it is bad for our entire system of justice. If our courts cannot take into consideration how the law is affecting our lives, in real world cases, then there will be no respect for the law itself.

This is a debate well worth having.

[As the father of an Hispanic daughter, I'm excited about the Sotomayor pick for other reasons, too.]

Comments

[LaurenJill]

You know who shows empathy, right? Women! With that "different" way of thinking! It's just not normal!
http://tasteslikechicken2me.wordpress.com/2009/06/04/women-do-not-think-differently/

[CVN65]

Great article. I would totally agree except for the amazingly slanted presentation of religion as a disruptive force and Phelps' presentation as a mainstream Christian. Tolins willfully ignores, actually pretends not to know (I sincerely hope that he is pretending), that our legal system and moral code is founded on Judeo-Christian principles refined over thousands of years. He goes on to supply a quote from an atheist with wild assertions but no evidence. On the other hand, he gets the GOP/Conservative point right, so that was surprising. More to his apparent lack of understanding, he fails to realize that the GOP is correct on this one. A Justice's feelings and sense of fairness mean diddly when deciding a case. They don't have to like or agree with a law or precedent but they sure cannot ignore it or overturn it based on that feeling of empathy. The law is the law and it is the same for everybody regardless of race, religion, wealth, etc. To even claim that the rulings should be different when you consider the particulars for each individual involved would mean that the law would be extremely subjective and we would see case law similar to that produced by Justice O'Connor-all over the place. To put this another way, nobody would know exactly what the law was in a particular instance until they knew which judge was presiding. Tolins knows this, I hope, and is just trying to effect an outcome.

[Juanx]

Contact your coworker..­. get to the finances of this.

Eric,

Indulge me for a moment...S­eems like the Civil Rights Movement and Voting Rights Act are the real underpinnings holding America together in these Conservative times. Each time a minority group hits a wall in becoming a main stream American they trot out these instances to gain a modicum of respect.

Never in the history of America has the Conservatives been in a place where their core dollar values are being examined and they are frightened to death. This is where the focus should be. Integration has not happened in the way the KKK expressed and acted upon...the access financial to well being for Conservatives will be an unwelcome, shared, and intrusive reality.

Engage more reporters to examine the spread of wealth, and there will be much to debate, and clear the air. "It’s the money stpd"...to paraphrase Bill Clinton.

[aussiegal77]

To ignore suffering and the human condition calls to question one's faith in the Almighty. Christians believe that Christ came to suffer on their behalf so that they may be made whole and their sins forgiven. So why then, do Christians inflict suffering and injustice on non Christians? Aren't they the very people that Christ called on his followers to go out to and preach the Gospel?

If by enforcing the law - our judicial system is required to ignore the human cost then I would say that this is not a moral or ethical society. Simply one that follows the rules of law to the letter - with no contemplation for mercy or compassion or empathy.

If God were to have followed His own laws to the letter - we would all be bound for Hell. If He were not a merciful God - He would not have sent Jesus to save the fallen from their sins. If God can be merciful - why can't we?

Just my opinion as a Christian.

[CVN65]

How do you know that we are not all bound for hell? Perhaps there is a LOT of open real estate past those pearly gates. Our justice system is designed to provide fairness for all, not to level the playing field or right inequalities or any other code words for anti-white discrimination. Justice must be blind to each petitioner's circumstances and beliefs. Do you think that the law should change from day to day, judge to judge? How is that the rule of law? That is the rule of man, subject to whimsy and passing fads. The Justice doesn't have to agree with it or like it, but they have to uphold it in the same manner for everyone. Anyone that believes otherwise is weak-minded and has no confidence in their own abilities.

[LewDan]

This country was founded by people who thought they had a right, a necessity, to ignore the law because they found it unfair. The Constitution was written specifically in an attempt to establish a system that would be fair. That would prevent, as much as possible, unfair laws being established or implemented.

Those arguing that empathy, that fairness, that justice, have no place in a court of law stand the entire judicial system and its very purpose on its head. Our government, our entire country, is predicated on the belief that law enforcement is about justice, and that justice IS NOT about law enforcement.

[CVN65]

Empathy and the law have no coexistence.

[Jakealoper]

"[As the father of an Hispanic daughter, I'm excited about the Sotomayor pick for other reasons, too.]"

Would he still be as excited as he claims if she was a white man with an identitical judicial outlook and skills? Since I am not hispanic, I have to admit that part of her adds nothing to her case.

[LewDan]

I suggest you actually read The Constitution. It does not establish SCOTUS as the arbiter of what's Constitutional. It certainly does not limit the courts to validating legislative decisions. The "separation of powers" means that a branch with no control over the military or power of the purse, that is not elected and therefore, theoretically, apolitical and unbiased can make decisions that are FAIR because they've no reason or power to pursue an agenda.

Remember "checks and balances?" The whole point of the judiciary is to make decisions that ARE NOT political but to attempt to ensure fairness. The judiciary is not a branch of law enforcement. It is not a legislative rubber-stamp. Its purpose is to promote JUSTICE. And since the Constitution does not limit SCOTUS decisions to Constitutional matters and the Constitution IS the highest law, ANY SCOTUS decision, by definition, "determines legality."

SCOTUS was CREATED because the legislature CANNOT be trusted to "determine fairness and the human cost of laws." At least, that was the belief of those who WROTE The Constitution.

[Romulus]

I suggest that you do not insult people just because they disagree with you. Do not assume that means they have not read the Constitution. I have read and studied it for over 40 years. There is nothing in Section III of the Constitution that discusses fairness, nor, in my opinion, even implies it. The courts make legal judgements, not fairness judgements.

[Jakealoper]

Those judgements are based on internal senses of right and wrong. For example, if the supreme court was stacked with abolitionists only, how do you think "Dred Scott" would have went?

[Romulus]

I'm a moderate who leans slightly to the left. On the issue of empathy in a court ruling, I'm with the right. It isn't the court's job to determine fairness or the human cost of their judgements. The job of the courts is to determine legality. The place to determine fairness and the human costs of laws is in the legislature and, to a lesser extent, in the executive. Legislatures need to consider whether existing or proposed laws are fair and how those laws affect human conditions. Executives need to agree or veto those laws. The Judicial needs to determine if those laws are Constitutional. This is called separation of powers.