Sotomayor nomination has given radical conservatives new life. They
have launched an attack that is nominally aimed at Judge Sotomayor.
But it is really a coordinated stealth attack - on President Obama's
central vision, on progressive thought itself, and on Republicans who
might stray from the conservative hard line.
There are several fronts: Empathy, feelings, racism, activist judges. Each one has a hidden dimension. And if progressives think conservative attacks are just about Sotomayor, they may wind up helping conservatives regroup.
Conservatives believe that Sotomayor will be confirmed, and so their attacks may seem irrational to Democrats, a last gasp, a grasping at straws, a sign that the party is breaking up.
something sneakier and possibly dangerous is going on.
Let's start with the attack on empathy. Why empathy? Isn't empathy a good thing?
Empathy is at the heart of progressive thought. It is the capacity to put oneself in the shoes of others - not just individuals, but whole categories of people: one's countrymen, those in other countries, other living beings, especially those who are in some way oppressed, threatened, or harmed. Empathy is the capacity to care, to feel what others feel, to understand what others are facing and what their lives are like. Empathy extends well beyond feeling to understanding, and it extends beyond individuals to groups, communities, peoples, even species. Empathy is at the heart of real rationality, because it goes to the heart of our values, which are the basis of our sense of justice.
Progressives care about others as well as themselves. They have a moral obligation to act on their empathy - a social responsibility in addition to personal responsibility, a responsibility to make the world better by making themselves better. This leads to a view of a government that cares about its citizens and has a moral obligation to protect and empower them. Protection includes worker, consumer, and environmental protection as well as safety nets and health care. Empowerment includes what is in the President's stimulus plan: infrastructure, education, communication, energy, the availability of credit from banks, a stock market that works. No one can earn anything at all in this country without protection and empowerment by the government. All progressive legislation is made on this basis.
president wrote of empathy in The Audacity of Hope,
"It is at the heart of my moral code and it is how I understand the
Golden Rule - not simply as a call to sympathy or charity, but as
something more demanding, a call to stand in somebody else's shoes
and see through their eyes."
President Obama has argued that empathy is the basis of our democracy. Why do we promote freedom and fairness for everyone, not just ourselves or the rich and powerful? The answer is empathy. We care about our countrymen and have an obligation to act on that care and to set up a government for the protection and empowerment of all. That is at the heart of everything he does.
The link between empathy and democracy has been established historically by Professor Lynn Hunt of UCLA in her important book, Inventing Human Rights. To hear her speak, go to http://www.youtube.com/watch?v=YZVD1G4q0bA.
The link between empathy and progressive thought is spelled out in my book Moral Politics and in my new book The Political Mind, just out in paperback.
In describing his ideal Supreme Court justice, President Obama cited empathy as a major desideratum. Why? Because that is what our democracy is about. A justice has to take empathy into account because his or her decisions will affect the lives of others. Before making a decision you have to put yourself in the shoes of those who your decision will affect. Similarly, in judging causation, fairness requires that social causes as well as individual causes be taken into account. Empathy forces you to notice what is crucial in so many Supreme Court cases: systemic and social causes and who a decision can harm. As such, empathy correctly understood is crucial to judgment. A judge without empathy is a judge unfit for a democracy.
President Obama has described Justice Sotomayor in empathetic terms - a life story that would lead her to understand people who live through oppression and deprivation and what it does to them. In other words, a life story that would allow her to appreciate the consequences of judicial decisions and the causal effects of living in an unequal society.
Empathy in this sense is a threat to conservatism, which features individual, not social, responsibility and a strict, punitive form of "justice." It is no surprise that empathy would be a major conservative target in the Sotomayor evaluation.
But the target is not empathy as it really exists. Instead, the conservatives are reframing empathy to make it attackable. Their "empathy" is idiosyncratic, personal feeling for an individual, presumably the defendant in a legal case. With "empathy" reframed in this way, Charles Krauthammer can say, echoing Karl Rove, "Justice is not about empathy." The argument goes like this: Empathy is a matter personal feelings. Personal feelings should not be the basis of a judicial decision of the Supreme Court. Therefore, "justice is not about empathy." Reframe the word "empathy" and it not only disqualifies Sotomayor; it delegitimizes Obama's central moral principle, his approach to government, his understanding of the nature of our democracy, and progressive politics in general.
We cannot let conservatives get away with redefining empathy as irrational and idiosyncratic personal feeling. Empathy is the basis of our democracy and its true meaning must be defended.
But the attack can be sneaky. Take David Brooks' column in the NY Times (May 29, 2009). He frames what he calls "The Empathy Issue" in terms of the use of emotions in decision-making. He is doing a conservative reframing of the issue. What is sneaky is that he starts by saying a number of true things about emotions. As Antonio Damasio pointed out in Descartes' Error, you can't make rational decisions without emotions. If you have a brain injury that wipes out your emotional capacity, you don't know what to want, since like and not-like mean nothing, and you can't tell what others will think of you. Here is Brooks:
People without emotions cannot make sensible decisions because they don't know how much anything is worth. People without social emotions like empathy are not objective decision-makers. They are sociopaths who sometimes end up on death row.
Supreme Court justices, like all of us, are emotional intuitionists. They begin their decision-making processes with certain models in their heads. These are models of how the world works and should work, which have been idiosyncratically ingrained by genes, culture, education, parents and events. These models shape the way judges perceive the world.
Note the mixture of truth and non-truth. Yes, sensible decisions require emotions. Yes, people without empathy are sociopaths. Yes, we all make decisions based on models in our head of how the world works. That's basic cognitive science. Mixed in with it is conservative reframing. No, empathy is a lot more than a "social emotion." No, using models of the world in decision-making need not be a matter of emotion. It's just how real reason works. Then the conclusion.
But because we're emotional creatures in an idiosyncratic world, it's prudent to have judges who are cautious, incrementalist and minimalist. It's prudent to have judges who decide cases narrowly, who emphasize the specific context of each case, who value gradual change, small steps and modest self-restraint.
Right-leaning thinkers from Edmund Burke to Friedrich Hayek understood that emotion is prone to overshadow reason. They understood that emotion can be a wise guide in some circumstances and a dangerous deceiver in others. It's not whether judges rely on emotion and empathy, it's how they educate their sentiments within the discipline of manners and morals, tradition and practice.
Empathy here has been reframed as emotion that is "idiosyncratic" - personal - a danger to reason. "Sentiments," that is, emotions, must be "disciplined" to fit "manners and morals, tradition and practice"- in short, the existing social and political order. This is perfect radical conservatism in the guise of sweet, moderate reasonableness. Where Rove and Krauthammer have the iron fists, Brooks has the velvet glove.
The attack on empathy becomes an attack on feelings, with feelings as not merely at odds with justice, but at odds with good sense. Where Brooks' tone is sweetly reasonable, G. Gordon Liddy is outrageous:
Let's hope that the key conferences aren't when she's menstruating or something, or just before she's going to menstruate. That would really be bad. Lord knows what we would get then.
Liddy is saying what Brooks is saying: Emotion is irrational and dangerous. Only Liddy is not nicely-nicely. The attack on feelings is of a piece with the old attack on "bleeding-heart liberals. And one step away from Cheney's attack on Obama and defense of torture.
What about Newt Gingrich calling Sotomayor a racist? It is linked directly to the personal feeling argument: because of her personal feelings for her own kind - Latinos and women - she will discriminate against white men. It is to support that view that the New Haven firemen case keeps being brought up.
The real target here goes beyond Sotomayor. In the last election, conservative populists moved toward Obama. Conservative populists are working people, mostly white men, who have conservative views of the family, of masculinity, and of the military, and who have bought into the idea of the ‘liberal elite" as looking down on them. Right now, they are hurting economically, losing their jobs and their homes. Empathy is something they need. The racist card is an attempt to revive their fears of affirmative action, fears of their jobs - and their pride - being taken by minorities and women. The racist attack has a political purpose, holding onto conservative populists. The overt form of the old conservative argument is made regularly these days: liberalism is identity politics.
Incidentally, Democrats are walking into the Gingrich trap. I heard Ed Schultz defending Sotomayor by saying over and over why she was "not a racist," and using the word "racist" next to her name repeatedly. It was like Nixon saying, "I am not a crook." When Democrats make that mistake, I sometimes wonder why I bothered to write Don't Think of an Elephant!
The attack on Sotomayor as an "activist judge" completes the pattern of radical conservative reasoning: Because of her empathy, which is personal feeling, which in turn is a form of racism, she will interpret the constitution not rationally, blindly, and objectively, but to suit her emotions.
It is vital at this point to understand how conservatives get away with the "activist judge" ploy. As any cognitive linguist knows, there is no such thing as "strict construction" of the Constitution. The reason was given by, of all people, David Brooks, as we discussed above.
Supreme Court justices, like all of us, ... begin their decision-making processes with certain models in their heads. These are models of how the world works and should work... These models shape the way judges perceive the world.
These models also shape they way the most "strict constructionist" of judges read the Constitution. Such models are physically part of the brain and typically operate below the level of consciousness. Conservatives are thus as much "judicial activists" as anyone else.
So how do conservative Republicans get away with the "activist judge" ploy? Democrats hand it to them. Why? Because most Democrats grew up with and still believe a view of reason that has been shown in cognitive science and neuroscience to be false. The sciences of mind have shown that real reason is largely unconscious, requires emotion, uses "models" (frames, metaphors, narratives) and so does not fit the world directly.
But Democrats tend to believe that reason is conscious, can fit the world directly, and works by logic, not frames or metaphors. They thus believe that words have fixed literal meanings that fit the world in itself, regardless of models, frames, metaphors, or narratives. If you believe this, then original meaning could make sense. Democrats don't fight it when they should.
Democrats make another move that allows them to keep their view of reason. They adopt the view of the "living constitution," which opens them up to charges of "judicial activism," charges made by conservative judicial activists. The source of the problem lies in the Democrats lack of understanding of their own unconscious reasoning processes. One of many Democrats deepest beliefs contradicts the facts about the brain and the mind and allows conservative judges to be activists while claiming to be strict constructionists.
Taken together, the attacks on Sotomayor work as attacks on Obama and progressive thought. They are also attacks on "moderate" conservatives, who think with progressives on many issues. The attacks activate radical conservative ideas in the brains of those who voted for Bush and the 47% of the voters who voted for McCain.
Radical conservatives know that Sotomayor will be confirmed. They also know that their very understanding of the world is being threatened by Obama's success. But they have a major strength. They have their message machine intact, with trained spokespeople booked on tv and radio shows all over the country. Attacking Sotomayor, even when they know she will win, allows them to rally their forces and get swing-voting conservatives thinking their way again.
How should Democrats respond?
Democrats should go on offense. They need to rally behind empathy- real empathy, not empathy reframed as emotion and personal feeling. They need to speak regularly about empathy as being the basis of our democracy. They need to point out that empathy leads one to notice real social and systemic causes of our troubles and to notice when and how judicial decisions and legislation can harm the most vulnerable of our countrymen. And finally that empathy is the reason that we have the principles of freedom and fairness - which are necessary components of justice.
Above all, Democrats should be aware that the attack on Sotomayor is not just about Sotomayor. It is an attack on the basis of our democracy and must be answered.