Sense and Nonsense: Sotomayor, Gates and the E-word

Opinion by Aysha Bagchi
July 30, 2009, 8:09 a.m.

The E-word has gotten a bad rep as of late, and it doesn’t deserve it. In fact, the past few weeks have been a big lesson in empathy — the ability to understand and share the feelings of others — is so important. In the aftermath of Sonia Sotomayor’s Supreme Court nomination, Republicans came armed with accusations that Obama appointed a “judicial activist” under the code word “empathy.”

Empathy, according to some outspoken Republicans, means showing bias or prejudice when considering claims or representing people. It is a warm-and-fuzzy code word for “legislating from the bench” with a specific agenda (most often to take away guns, define marriage and promote abortions). It seeks to override the law. It is undemocratic.

The irony of the recent condemnation of empathy is that people of all political ideologies empathize at least with like-minded people.  A lifetime gun owner from rural America empathizes at least with fellow gun owners, understanding how important guns are to them and their way of life.  A parent of a child who died in the Virginia Tech shooting may empathize with advocates for increased gun restrictions, understanding how frustrated survivors feel when a loved one dies.  The question is not whether people empathize, but with whom.

It is easy to empathize with people like ourselves because we share their experiences.  That kind of empathy comes without effort.  With others, empathy is a task, requiring us to imagine ourselves in another’s shoes and to be as generous as possible in understanding the case of the other side.  This second kind of empathy is hard work; it doesn’t come as easily or as often.  And without it, reasonable people come to different conclusions with little understanding of how any reasonable person could think otherwise.

Take, for example, the recent 5-4 Supreme Court decision, District Attorney v. Osborne.  The Supreme Court ruled that there is no constitutional right to post-conviction access to DNA evidence that might prove a convict’s innocence.  Justice Alito showed empathy with state efforts to preserve a finality in decisions and keep the guilty behind bars, calling a guarantee of access to DNA evidence an opportunity to “game the criminal justice system” in the hopes that contamination of the evidence might lead to post-conviction relief.

Justice Stevens, on the other hand, empathized more strongly with the few innocent who are wrongly convicted, declaring that “[t]here is no reason to deny access to the evidence and there are many reasons to provide it.” Without appreciating the feelings of a state prosecutor working to keep the guilty off the street or of an innocent convict seeking life-rescuing proof, the Court would fail to take into account the interests that make its decision so important and difficult.

In this context, the controversy over Sotomayor’s statement about a wise Latina woman is illuminating. Claiming that a wise Latina will more often reach better conclusions than a white male who “hasn’t lived that life” may simply mean that a wise Latina woman will more easily empathize with women and minorities than a white male.  Historically, empathy with men and the majority has not been lacking in the white male officials who were in power, but empathy with women and particular minorities has.  Thus, if a Latina woman is more likely to empathize with minorities and women, and that empathy doesn’t come at the expense of empathy with the majority and men, a few more Latina women would be a positive addition to judges in America.

Whoopi Goldberg highlighted the point on “The View” this week in talking about Sotomayor’s nomination.  She said she has “always had to deal with the fact that the judges on the Supreme Court were all white and [she] had to hope that they knew something about where [she] was coming from.”

Nominees to the Court who empathize more broadly will inspire confidence in groups of people whose claims upon the law have historically been neglected by the Court.  Such groups will increasingly believe the Court is hearing new voices in addition to the old ones. The ability to empathize with different types of people, including those outside the mainstream, brings greater understanding, not bias.

All this has played out in the recent Gates controversy, in which Harvard Professor Henry Gates Jr. was arrested at his home for “disorderly conduct.”  In the immediate aftermath, without sufficient facts to complete the actual story, people filled in the blanks to create their own stories.  Those with strong empathy for minorities who have suffered from racial profiling told a story of a man targeted and ultimately arrested because of his race.  Those with strong empathy for law enforcement officials told a story of an uncooperative professor who deserved to be arrested.  Those with empathy for both parties told a more complicated story and reserved judgment — and probably came closer to the truth.

In the New York Times this week, Judith Warner connected the incident to a line from Obama’s campaign speech on race in which he called on blacks and whites to listen to each other’s narratives, on whites to stop dismissing black narratives as paranoia and blacks to stop dismissing white narratives as prejudice.  In short, he called on Americans to empathize more broadly.  Empathy is a crucial factor in picking judges, electing officials, and understanding any debate.  Extending our empathy challenges us to ask questions we don’t like to — to walk down paths that lead us away from our cloisters.  It is in effect opening another window.  Empathy complicates matters, which is a good thing, so politicians need to stop giving it a bad name.


Aysha is chock-full of empathy. You can reach her at abagchi ‘at’

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