Both Oars In Empathy and Justice

Jun 12, 2009

Having previously highlighted empathy as an essential quality for a Justice, President Obama nominated Sonia Sotomayor for the Supreme Court. Calling her inspiring, he stated that Ms. Sotomayor’s life experience will help her to appreciate how the law impacts ordinary people—something the President clearly believes is important for a Justice. He ranked Ms. Sotomayor’s extraordinary journey from the housing projects in the South Bronx to the hallowed halls of our nation’s finest universities as equally important to her extensive judicial career in prompting his selection of her to replace Justice Souter. He is confident that Ms. Sotomayor’s inspiring life’s journey will provide her the experience necessary to be empathetic to those who appear before the court.

The President’s emphasis on "empathy" suggests that he believes sympathy and understanding, of which we are all capable on account of our intellect and goodwill, are not sufficient to assure that a judge will be able to administer the law fairly. The President clearly feels that a Justice must be able to call on actual experience to see life from the point of view of a plaintiff or defendant to mete out justice properly. The basis for his nomination also suggests he believes one person’s experience can be more "rich" than another person’s and therefore provide a greater basis for empathy. These are interesting assertions for a man who champions tolerance, rigorous intellect and unbiased rationality.

Mr. Obama’s postulation that Ms. Sotomayor possesses a capacity for greater empathy than others on the basis of her life experience begs several questions. How similar is the life experience of one person with another’s even when they share a common background? Is common experience a requirement for serving a constituent? Is empathy superior to sympathy and blind justice in motivating fairness? Could any one person have enough personal experiences to match the diversity of a nation of people? Can one person actually have a "richer" life experience than another? Is it logical to suggest that a person may have more or less relevant life experiences for deciding what is constitutional purely on the basis of his or her race or ethnicity?

How would President Obama explain God’s choice of Francesco Bernadone to lead the advocacy for the poor and the Catholic Church’s adoption of a preferential option for the poor? Before taking on the coarse brown robe of a mendicant, St. Francis was a young playboy with money enough to host party after party. He had never gone without a meal unless his drunken stupor caused him to oversleep or lack the stomach for hard food. Yet, he chose to live in solidarity with the poor. His father felt he was mentally ill, but we know he was empathetic beyond limit. Should the Church have rejected him as an advocate for the poor for lack of previous personal experience?

Certainly, two people who have much in common in regard to race, ethnicity, nationality, faith, and education are likely to share more in common than two people with nothing in common. But, how much more? Individuality is a far greater separator than any of the sociopolitical differentiators. Just being two separate people sets us apart by a mile; the other determiners add maybe another ten feet. After all, genetically we are about ninety-seven percent the same, yet we are each absolutely unique in person.

I have seven siblings and not one is like the other. Raised similarly, even attending the same university and schools in many cases, we are still a mixture of Republicans and Democrats, fiscal conservatives and social spenders, practicing Catholics, Unitarians and in between. We have income differing by several figures and lifestyles that are equally diverse. Yet, we have but two parents and an absolutely common ancestry. Only individualism can explain our uniqueness.

My experience as a missionary to Haiti also suggests that common origins are less important than choice in terms of understanding the other and feeling empathy. I have found myself closer to people with whom Mr. Obama’s social theory would suggest I have too little in common to understand than to people with whom I share a common heritage. These close relationships are equally the result of the people with whom I associates choosing not to reject me as a foreigner as my willingness to reach out across the very lines the President and Ms. Sotomayor inadvertently draw in the sand. I have found that solidarity is a choice, not a birthright.

We are intelligent, rational beings who all possess subjective biases. We chose who we like and extend ourselves to whom we chose. To suggest as Justice Sotomayor does in her statement that a "wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life" is not ethnocentrism, it is just political poppycock. There is simply no evidence that a white male is likely to have less life experience to draw on to understand another individual than a Latina woman. True empathy is as blind as true justice.

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