Do Republicans Lack Mirror Neurons? July 14, 2009Posted by Dwight Furrow in Dwight Furrow's Posts, ethics of care, politics.
Tags: empathy and Judge Sotomayor, empathy as epistemological, ethics of care
I posted recently on the flap over Obama’s use of empathy as a criterion for choosing supreme court justices. But the moral cretins in the Republican Party still don’t get it. It is as if they were born without mirror neurons.
So it is worth revisiting the issue.
Yesterday in the Judiciary Committee hearings on Sonia Sotomayor’s nomination to the SCOTUS, Sen. Charles Grassley (R-IA) said
“This empathy standard is troubling to me. The Constitution requires that judges be free from personal politics … feelings and preferences.”
But this is an utter misunderstanding of how empathy works. Empathy is a fundamental moral capacity. It is, in part, what makes us moral beings. Any person, whether a judge or not, must have empathy to function as a social being because empathy enables us to discern how others are situated in the world, what their emotional state is, what their intentions are, etc. We could not accurately interpret human behavior without empathy. [See Vignemont and Singer, unfortunately behind a paywall.]
Judges especially need empathy. Whether the issue involves the equal protection clause of the 14th Amendment or disparate impact statutes in employment law, judges must determine how various interested parties will be affected by their rulings. When the law treats one group differently from another in the pursuit of a social goal, special justification is required
It is simply part of their job to assess outcomes.
Republicans wrongly think that judges who feel empathy must be allowing their preconceived moral ideology to influence their understanding of the law. They seem to think that judges must coldly apply the law as written without regard to consequences, which of course enables their privileged position as advocates for the ruling class to be smuggled in disguised as objectivity.
But empathy does not work that way.
Empathy is a necessary condition of impartiality—at least the kind of impartiality that humans (as opposed to machines) are capable of—because empathy makes us imagine, and thus come to know, how our actions affect others.
Responsible judges begin with the law as written, constrained by precedent and legislative history, and then ask whether the law so interpreted has the effect intended by lawmakers. One needs empathy to answer this question.
Empathy is not a conduit through which we splatter our preferences on an otherwise autonomous law. Empathy helps us discover the facts—it is fundamentally epistemological, not ideological.
Maybe Senators should be forced to undergo fMRI scans (to detect the presence of mirror neurons) before running for office. That would be the end of the Republican Party as we know it.
Cross-posted at Reviving the Left
or Visit the Website: www.revivingliberalism.com