David Brooks, who frequently appears as a representative of conservative views, picks up on the idea that a judge needs empathy. His argument is politically important and it is also balanced. One conclusion he reaches about the need for a judge’s self-knowledge of her decision making has an almost tragic air about it, since it appears that Sotomayor’s articulations of her self-knowledge are being used against her. (For the articulation, see this post and the discussions.)
Nonetheless, there’s a problem with the core of what he says. Let’s look at it.
He starts with an important point:
The American legal system is based on a useful falsehood. It’s based on the falsehood that this is a nation of laws, not men; that in rendering decisions, disembodied, objective judges are able to put aside emotion and unruly passion and issue opinions on the basis of pure reason.
While the falsehood is useful generally, there’s a danger that it could be employed to derail Obama’s current nominee, Sonia Sotomayor. So it’s important to see how it is false. Here’s Brooks’ account:
It is incoherent to say that a judge should base an opinion on reason and not emotion because emotions are an inherent part of decision-making. Emotions are the processes we use to assign value to different possibilities. Emotions move us toward things and ideas that produce pleasure and away from things and ideas that produce pain.
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.
Unfortunately, as Brooks should know, given the background reading his recent articles indicate, this isn’t right. One can spend hours grading logic tests; while emotions may be involved in one’s struggle to stay focused – or even just to stay at one’s desk – you don’t need emotions to decide for you what is and what is not permitted according to a rule of logic. As Damasio in his Descartes Error points out, someone who is incapable of living a wise practical life because his emotions and reason do not work together can nonetheless do all sorts of calculating correctly. It is creative and/or practical decisions that are, then, according to Damasio and other researchers, in need of the evaluing guide of the emotions.
Why, then, is the law more like creative or practical or moral decision making – at least when we understand the latter according to theorists that allow room for emotion – than logic? There are no doubt a number of reasons for this; among other things, it is hard to halt the decision process if one doesn’t have a sense of a good outcome. This may be part of what Brooks has in mind when he says:
The mind tries on different solutions to see if they fit. Ideas and insights bubble up from some hidden layer of intuitions and heuristics. Sometimes you feel yourself getting closer to a conclusion, and sometimes you feel yourself getting farther away. The emotions serve as guidance signals, like from a GPS, as you feel your way toward a solution.
Another was explored explicitly in a post below: All sorts of human concepts don’t have the precise definitions that allow a simple and dispassionate “yes or no” test for their application. The comments on that post are well on their way to establishing we can’t even easily define “bachelor.” Important legal terms like “cruel and unusual” have much less chance of such definitions.
Brooks also maintains:
Sonia Sotomayor will be a good justice if she can empathize with the many types of people and actions involved in a case, but a bad justice if she can only empathize with one type, one ethnic group or one social class.
Lastly, Brooks emphasizes how important it is to be aware of the conflicting demands on one’s decisions and of the importance of knowing self-restraint. These last two points could well make one quite sad, for we now have a Chief Justice who officially regards himself as a totally disengaged observer, but whose decisions almost entirely side with powerful vested interests. And we have a wonderful nominee whom many would like to derail in part because of her awareness that a judge cannot really be so disengaged.
We’ve had a series of posts on Sotomayor that readers might want to be aware of.