UP@NIGHT

In declaring his criteria for a Supreme Court nominee when Justice Souter announced his departure, Obama mentioned empathy and real world experience, in addition to a deep knowledge of the law.  At the time, right wing ideologues started screeching about how the term “empathy” was merely a code word for a liberal activist judge.  The fact that Obama has emphasized the importance of empathy in numerous contexts, not just with regard to the Court, was ignored.  Since empathy must equal “activism,” these ever so sharp right wing talking heads were prepared to shout in unison, “gotcha.”

Sonia Sotomajor may be a left leaning centrist, but she is certainly no left wing radical.  The reasons Obama gave for choosing her fall right in line with his version philosophical pragmatism, which is related to his insistence that empathy is a legitimate criterion for selecting a member of the Supreme Court.  Failure to understand that Obama is a philosophical pragmatist, as opposed to simply a political one, explains much of the confusion about his approach to selecting nominees and advisers.  When Obama talks about the importance of experience, when he talks about consequences (as opposed to abstract principles), when he talks about fallibilism, when he talks about consultation and cooperation, and when he talks about what works, he is using well known catch phrases of this tradition.  And he knows it.  Unfortunately, political commentators, left, right and center, don’t.

Obama’s commitment to philosophical pragmatism was highlighted this week when he invoked the words of Oliver Wendell Holmes, Jr. in announcing his selection of Sotomajor.  Obama and Holmes are on the same wave length in how they understand the role of law in society (and society in law).  And Holmes was deeply indebted to the pragmatist tradition and counted among his closest friends the leading pragmatists of his day.  ( See, “Obama: Conservative, Liberal, or Ruthless Pragmatist?”)  Holmes’s most famous statement about the law is indicative of his pragmatism, and Obama cited it in order to help explain one of the most important decisions of his presidency.

So I don’t take this decision lightly. I’ve made it only after deep reflection and careful deliberation. While there are many qualities that I admire in judges across the spectrum of judicial philosophy, and that I seek in my own nominee, there are few that stand out that I just want to mention.

First and foremost is a rigorous intellect — a mastery of the law, an ability to hone in on the key issues and provide clear answers to complex legal questions. Second is a recognition of the limits of the judicial role, an understanding that a judge’s job is to interpret, not make, law; to approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice; a respect for precedent and a determination to faithfully apply the law to the facts at hand.

These two qualities are essential, I believe, for anyone who would sit on our nation’s highest court. And yet, these qualities alone are insufficient. We need something more. For as Supreme Court Justice Oliver Wendell Holmes once said, “The life of the law has not been logic; it has been experience.” Experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers. It is experience that can give a person a common touch and a sense of compassion; an understanding of how the world works and how ordinary people live. And that is why it is a necessary ingredient in the kind of justice we need on the Supreme Court. New York Times, May 26, 2009 (empahasis added)

“How ordinary people live,” this too has been a great concern of pragmatists, which brings us back to empathy.  There is a misunderstanding about the term that stands behind many of the misguided attacks.   It has two major components, and they have been conflated in the MSM.  The first is the ability to, shall we say, stand in the shoes of the other guy.  Obama often speaks about empathy in this way.  George Herbert Mead, an important pragmatist of the early 20th Century, spoke about the importance of taking the perspective or role of the other.  To function as social beings we must be able to see the world through the eyes of others.   (Mead was close friends with John Dewey, perhaps the leading pragmatist of the 20th Century.  Dewey’s granddaughter  was Obama’s mother’s graduate school adviser.)  Usually when we think of standing in the shoes of the other guy, we also think about being compassionate.  This is the second component of the term.  But these two aspects of empathy are not identical.  We sometimes find ourselves standing in the shoes of the other guy and still not feeling very compassionate about his or her actions.  But to understand this person, to make certain kinds of evaluations, which may even be negative (he’s a cold-blooded killer, and that’s what it feels like standing in his shoes), we must be able to take the perspective of this person.  Yes, doing so often leads to compassion, but it doesn’t have to.

I am convinced that Obama is a sophisticated enough thinker to understand these basic features of empathy.  He is not confusing justice and mercy, as several conservative pundits have claimed, when he invokes empathy as a criterion.  He is not eliminating (judicious) judgment in favor of some sort of political correctness.  (He specifically mentioned “impartial justice” in his remarks.)  Obama has a view of the law that respects its internal “logic,” but understands that this so-called logic requires interpretive skills and a historical sensibility.  It is not a transhistorical logic.  In other words, there is no view from the mounatintop when dealing with human creations such as the law.  Justice requires a rich understanding of legal precedent, of legal argument, but also of people and of people’s current circumstances, and for the latter, we must be able to stand in their shoes.  Justice is a balancing act.  It requires judgment, not simply deduction from set principles.  That’s why we call those who interpret the law judges and not deducers.

For Obama, empathy and experience go hand in hand, because experience entails social interaction, and social interaction devoid of empathy is, well, inhuman, in both senses of the term (not human, not humane).  The kind of justice who will best serve us on the Supreme Court is one who understands that the life of the law is not logic but experience, which in turn entails empathy.