The Fight Against Empathy

07/03/2009 05:12 am ET | Updated May 25, 2011

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.]