The Empathy Element

Leave it to Barack Obama, a brilliant and nuanced thinker-politician, to add empathy to the list of characteristics he considered in choosing his first Supreme Court appointee. What an interesting and fresh feature to add to the confirmation process.

Empathy is a psychosocial aspect of all our behavior. We are products of our history. While our history is an important part of everything we do and think, it is not the only part. It is an influence. Some justices — Clarence Thomas is an example — rule in unpredictable ways if their personal empathy is the decisive factor in their decisionmaking. The aphoristic debate whether ours is a government of laws or of men (and women, increasingly) suggest, incorrectly, that we cannot be both.

Our empathy is the beginning of our perspective; it is not the end of it. I recall arguments with an Afro-American friend and client about affirmative action and quotas. His background predisposed him to see affirmative action as a way into mainstream American society. My background predisposed me to view quotas as barriers to keep me out of it. We were both right in our opposing perspectives, but we usually found common ground in applying them to specific issues.

So too will Sonia Sotomayor be disposed — empathetic — to certain issues based on her unique experiences. So too was every justice on this Court and all prior Supreme Courts. Ideally, each justice’s background — race, ethnicity, education, work experience, geographical region, sex, politics — melds with his and her colleagues’ backgrounds to make a democratic mix — better than any one individual’s single profile. This is democracy at work.

This subject is worthy of wise consideration at Judge Sotomayor’s hearing, not caricaturing, not demonizing, not condescending, not even predominant, but surely worthy of smart dialogue.

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