Supreme Court nomination season is more rife with code words and hidden references than a Dan Brown novel. "Strict constructionists" and "activists judges" are just some of the most commonly used double-entendres in circulation.
But perhaps the most unexpectedly buzzed-about word in recent weeks is "empathy." In his first remarks on the retirement of Justice David Souter, President Obama said:
"I will seek somebody with a sharp and independent mind and a record of excellence and integrity...someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.
I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.
According to conservative pundits, empathy is not a word meaning "understanding, being aware of, being sensitive to, and vicariously experiencing the feelings, thoughts, and experience of another..." but instead a coded dog whistle to his pro-choice, pro-gay rights base.
Of course, it wasn't actually a dog whistle of any sort, because Obama used the oft-echoed word in a speech to Planned Parenthood--no secret connotations there. Explaining why he voted against confirming Justice Roberts, here's what Obama said:
Justice Roberts said he saw himself just as an umpire, but the issues that come before the Court are not sport, they're life and death. And we need somebody who's got the heart-the empathy-to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor or African-American or gay or disabled or old-and that's the criteria by which I'll be selecting my judges. Alright?
As Wonkette reported in typically NSFW/hilarious language, "empathy" more than any other word sent a flock of right-wingers into fits of rage. Alabama Senator Jeff Sessions said he "didn't understand" empathy and he assumed it meant personal predilections--while National Review writer Thomas Sowell wrote that Obama's use of the word led down a slippery slope to... Hitler-esque fascism. Literally.
Right, because Hitler had too much empathy for the non-Aryans in Europe. That was his problem.
Finally, to cap the trifecta of empathy-naysayers, GOP party chairman Michael Steele ranted:
I don't need some judge sitting up there feeling bad for my opponent because of their life circumstances or their condition. And short changing me and my opportunity to get fair treatment under the law. Crazy nonsense empathetic. I'll give you empathy. Empathize right on your behind. Craziness.
What's most amusing about all these reactions is each critic has implied that the hypothetical empathetic justice would rule against his interests, rather than empathize with him. It's my guess that should Sessions, Sowell or Steele actually ever find themselves before a judge, they would hope the judge possessed empathy in heaps, seeing the parties involved as human beings with real stakes rather than merely players in a legal game.
From a linguistic and humanistic perspective, this word-bashing party is a real pity, because "empathy" has one of the nicest definitions in the English language. It's not the condescension-laced "sympathy." No, empathy means transcending our basic human selfishness, our limited perspective, and seeing the world through others' eyes to the very extent of our capacity. To approach social problems with a truly empathetic outlook is vital--and to approach our neighbors, relatives and colleagues from a place of empathy is arguably even harder. Like Lady Macbeth scorning the "milk of human kindness," then, this group of empathy-haters is turning one of our most remarkable emotional capabilities into a negative.
But it's hard to blame these detractors alone for the fears stoked up by the President's use of the word. Empathy as a value scares social conservatives because it contradicts their current philosophy, particularly when it comes to the kind of civil rights and reproductive rights issues that are decided in court.
Indeed, empathy should scare them. On our end, the pro-choice, pro-reproductive justice philosophy is grounded in empathy--the idea that we cannot judge another woman or person's choice unless we've walked a mile in her shoes. And even if we have. It's the inherent belief that we can't extrapolate the law or the rules from one person's experience. The reproductive justice movement is full of women who have chosen to carry a pregnancy to term fighting for the right for others to have access to abortion and vice-versa, women who underwent hospital births advocating acceptance for home births, women in different types of romantic and family relationships advocating for each other, and infinite other permutations.
The anti-choice movement has the opposite approach, a product of a massive failure of imagination and a lack of empathy. It's the belief that one person's experience should apply to all: "I regretted my abortion, so abortion should be illegal." "My teenage daughter gave birth so all teen pregnancies should end that way." "I disapprove of premarital sex, so safe sex education should be banned from schools." Or occasionally, "my reasons for having an abortion are legitimate, but she's just a slut!"
One person notably chafing against this complete inability to escape such a limited worldview is Republican scion Meghan McCain, who eviscerated her party's approach to birth control in the Daily Beast last week. While affirming that she is "pro-life," McCain wrote that the Republican Party's inability to talk about things it deemed "immoral" renders it irrelevant:
Not everyone shares the same beliefs, and more importantly, people don't always react the same way to their circumstances. Which is why it is so important to encourage honest, open communication about the realities of sex within the party at large, and more specifically, between parents and their children.
While McCain writes about a narrow issue, her acknowledgement that different people think and react differently to the same situation shows a fledgling understanding of, dare we say it, the kind of empathetic principles that are sorely lacking in her party. She should be commended for providing reasonable voice on the subject.
But here's the problem. If we follow McCain's burgeoning philosophy--each person is different, and not all standards of sexual morality are universal or objective--to its logical conclusion, it would lead a lot further. It might lead all the way to a government and legal system that didn't use outdated mores to judge real-life cases. It might lead to a pro-reproductive justice, pro-gay marriage, pro civil-rights for all vision, and possibly even beyond.
Social conservatives know that injecting little bit of empathy into the public discourse could go a long way towards changing the social hierarchies to which reactionaries desperately cling. So they have a major reason to be scared. But the rest of us should be celebrating Obama's use of a word that affirms our better selves, and looking for a Supreme Court justice and other members of our government that live up to the less-tangible, but no less important, standards "empathy" represents.
