What's Wrong With Empathy

What's wrong with empathy?

It does not take all that much imagination to answer that question. Here's a simple answer: people tend to feel greater or less empathy for other people for a variety of reasons but largely because of who and what they are, i.e., their identity - their ethnicity, their class, their gender, their physical attractiveness.

A judgment based on empathy will consequently tend to be biased in favor of certain parties on the basis of their identity.

Granted, it is probably unrealistic to expect a judge not to be influenced by empathy for some of the parties. But that doesn't mean it should be advocated!

And also granted, a mention of "empathy" in relationship to judging could mean any number of things. For example, it might mean placing oneself in another's shoes - an act which does not necessarily involve any consideration of their identity, but may involve merely a consideration of their situation in the case being judged regardless of who or what they are. But considering the current political climate (in which, for example, people who complain about the actions of the Obama administration are called racists - a charge which has nothing to do with the specific complaint and everything to do with the identity of the president), the interpretation I offer is hardly a stretch.

Will Wilkinson's interpretation of Obama's statement construes the president as speaking in code (which is the very thing he complains of in others). On Will Wilkinson's interpretation, Obama isn't looking for empathy (as opposed to lack of empathy), but rather, Obama is looking for a redistribution of empathy. To defend Obama's remark, Wilkinson writes:

But holding ideology fixed, I think there’s a strong reason to prefer a well-qualified woman to a well-qualified man. And I think another woman would likely increase the scope of empathy on the court in a pretty straightforward and desirable sense.

Will Wilkinson isn't talking about increasing the amount of empathy, but increasing the scope. Wilkinson is not claiming, or implying, that a female judge would have more total empathy than a male judge. He is implying that a female judge's empathy would be better attuned to a different group of people than a male judge's empathy, and thus increasing the proportion of female judges would redistribute some of the court's empathy to that group.

But that is not actually what Obama said. Obama was talking about empathy versus lack of empathy, not about empathy for one group versus empathy for another group. Will Wilkinson complains about conservatives' interpreting Obama's talk about empathy as "code" for "judicial activism", but Wilkinson himself is interpreting Obama's talk non-literally - i.e., as "code" for something he is not actually saying. It is, moreover, perfectly defensible to interpret anything Obama says non-literally, as the right does, as Wilkinson just did, indeed as Obama's left-wing supporters do. Obama's supporters trust him because he lies.

Notice, however, that Wilkinson's interpretation agrees with mine on the important point of linking empathy with identity. Wilkinson's argument assumes the truth of my claim, which is that judges don't have the same amount of empathy for everyone, that identity is a key factor in who gets a judge's empathy, and finally that this fact is Obama's reason for talking about empathy.

By the way, here is one of Obama's explanations of his talk about empathy:

[Lilly Ledbetter] didn't know that she was getting paid less, when she discovered it, she immediately filed suit to get back pay and the suggestion was somehow that she should have filed suite earlier.

Well, I think anybody who has ever worked in a job like that understands that they might not know that they were being discriminated against it. It doesn't make sense for their rights to be foreclosed.

That's the kind of case, where I want a judge not only to be applying the law in front of them, but also to understand that as a practical matter. A lot of times people have weak bargaining power.

Obama is advocating that the judge ignore the law in a case like this. His reason for making the exception: Ledbetter's "weak bargaining power." Why does she have weak bargaining power? She is presumed to have weak bargaining power and he gives no reason, but we can guess: she is an employee and she is a woman.

So, one reasonable interpretation of what Obama is saying is: the law should be bent in favor of employees and women. (And coincidentally, a majority of voters are employees and a majority of voters, a majority of Democratic voters, and a majority of those who voted for Obama, are women [or so my googling tells me].)

Obama is careful to say:

Now, in some ways it might cut the other way. I want a judge who has a sense of how regulations might affect the businesses in a practical way.

With the obvious intent to give the impression of evenhandedness.

But first, this is not at all obviously a case of it cutting the other way, because this is not described as a dispute between an employer and a female employee, but as a dispute between an employer and a regulator.

Second, if he were really for evenhandedness, he wouldn't advocate bending the law in the first place to favor women and employees (which is what he appears to advocate).

Would Obama really advocate tilting some cases in favor of women and employees and others in favor of men and employers? But Obama hasn't given any specific reason why Ledbetter as opposed to a random woman or employee has "weak bargaining power". What about Ledbetter makes her deserving of special favor from the court other than being a woman and employee? And if these are enough, then it follows that women and employees generally, always, deserve special favor from the court. Every woman is a woman, every employee is an employee, so if Ledbetter's only claim to special favor is that she is a woman and an employee, then necessarily anyone else with the same properties has that claim.

This has been a long entry so to summarize it, Obama advocates bending the law to favor people who voted for Obama. And this is what he means by "empathy".

All of which illustrates the tie that both Wilkinson and I see between empathy and identity.

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the other side of the coin

Seems to me that people who want double blind just the facts justice would favor traffic enforcement by speed cameras and red light cameras with maybe a 5 second movie clip to show the driving as well as the license plate but that doesn't appear to be the case.