President Obama has had the opportunity to nominate his first appointment to the Supreme Court of the United States. The president has consistently stated that he wanted someone with "empathy" on the Court and just what he seeks may finally be understood as Judge Sotomayor's affirmation seems imminent.
In viewing some of the resistance to Sotomayor there is evidence that it is tempting for many to see as a victory the recent Supreme Court judgment to set aside the decision of a three-judge panel, on which Judge Sonia Sotomayor sat. And victory it was for those who make the rules, the law, and then purpose to "uphold" the law from their own worldview. In so doing, the press and other sources rail against President Obama's reference to the "empathy' he would seek in a Supreme Court nominee and which Sotomayor appears to embrace.
The displeasure exposed by the call for "empathy" in the present arena is all the more suspect when Supreme Court Justice Alito's statements are examined. In his confirmation hearings, Alito enumerated a history of his cultural background and how such would mitigate his legal decisions. He said in part, "When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account." To that affirmation Senator Tom Coburn responded, "Thank you."
In the case of Sotomayor, however, Coburn demonstrated an absence of "empathy" and showed that he had not understood Alito's assertion. He did so by invoking the more than half-century old stereotypical Latino Ricky Ricardo of the "I Love Lucy" television show and casting Sotomayor in the role of Lucy tells her "You have lots of 'Splainin' to do." Here was the very absence of "empathy" to the nth degree from someone having had no difficulty with the similar emotion expressed by Justice Alito.
A not unheard of revulsion of empathy suggests that it is out of place for Justices because they must be neutral, impartial, and unbiased. This is based upon the assumption, of course, that there are any human beings capable of being one, all, or any combination of those ideals. Certainly it is something that one should strive for in life, but to say there can be no empathy is absurd. We are all products of our lives and values, and no one, not a judge nor a reporter, can be purely objective.
Many of us are familiar with the representations shown to diverse groups which elicit different responses from those groups and individuals within them. What Black folks see or hear or feel is not always what White folks see or hear or feel and vice versa. I recall learning in graduate school when several black pre-reader kids were unable to point to the "ambulance" clustered among other pictures on a page. The white children were perfect in their identification and this reality led to the conclusion, among other results, that the former were less intelligent than the latter. The results confounded test givers until a teacher of color administered the test herself and the black students improved to demonstrate intelligence the equal of and higher than some whites who could not find the "ambulance." The difference was largely due to a difference in pronunciation for in the city for whites and some blacks the word is "am-bulance" with heavy emphasis on the first part. Black children, however, stress the last part "lance' as something more akin to "lawns." I also recall learning in undergraduate school that upon watching a film of the Soweto riots of 1976 in South Africa, White students responded with questions about African dance and costumes while I and others like me were in tears.
I am not suggesting that "all" whites are one way or that all "blacks" are one way. What I am proposing is that in order to come within spitting distance of neutral, impartial and unbiased, one has to have some understanding, some empathy for other groups, other people, and not just the letter of the law. Certainly, when the reports were legion that there was widespread looting in New Orleans after Katrina the response was armed guards to protect the rights of corporate entities and damn the poor whose babies were hungry and who were breaking in seeking formula and Huggies. In point of fact, the cases of theft after Katrina are empathetically shown to have been magnified by the press, in the critical analysis of 'Unacceptable': The Federal Response to Hurricane Katrina, written by Walter M. Brasch. Furthermore, when the warnings were declared some expected the people to get into their SUV and drive to safety. If one could appreciate, however, the conditions of the 10th Ward in New Orleans, the exigencies of poverty were such that most of the people had no access to automobiles, and public transportation was unavailable, then one could be said to have "empathy."
Most of America went ballistic when exposed to Rev. Wright's call for God to damn America, but much of America was relatively silent when Rush Limbaugh called for President Obama to fail. It is a matter of perspective. Wright sees the injustices, the hurt, the pain, not only to Black Americans by way of slavery, and Jim Crow, and segregation, but also to other nations as impossible to forgive if not to forget. Rush Limbaugh on the other hand, does not feel Wright's tensions so he sees Obama as a liberal who would harm America and bring it to its knees by introducing some kind of "empathy" into home and foreign negotiations. And empathy, of course, is that odious affection that leads one to feel the concerns of the disadvantaged, the marginalized, the people with the feelings and inclinations that run counter to the White constructed laws and lemmas based on their own sole [impartial] view of how things were how they are and should be.
So when Black firemen do not demonstrate proficiency on a test and call for a review of the test and White firemen who passed the test cry reverse discrimination it is clear once again that there is no empathy for the former. Incidentally, reverse discrimination implies that there is such a thing as discrimination, which most people I meet claim does not exist. Furthermore, if there is or has been discrimination, and if there is a genuine effort to right that wrong, then those who discriminated must lose something so that the discriminated against can gain something with an eye to realize some balance and perhaps that neutral, impartial, and unbiased platform we covet.
That will take some doing as testing in general is flawed and has so many variables that equity is elusive. Not the least of those variables is the built in understanding we all have of opposite racial types. Those who have read the book Blink by Malcolm Gladwell will be familiar with this phenomenon. Gladwell describes a two-column computerized test, the Implicit Association Test [www.implicit.harvard.edu] (IAT) in which, in one case, the columns are headed "European American or Bad" and "African American or Good" respectively. Subjects are then given concepts such as "Hurt," "Evil," "Glorious," and "Wonderful," and then asked to press certain keys to put the concepts in appropriate columns when either a black or white face is flashed on a screen. In trying to complete the test quickly, people find it nearly impossible to respond according to their pre-test assertion that they think of the races as equal. Having to put "Evil" under European American when a white face appeared or "Good" under African American when the face was black becomes insurmountably difficult. One possible conclusion is that our values affect our perception and that our understanding and ability to enter the feelings of others, "empathy" in other words, is underdeveloped and needs to be encouraged if not demanded.
In the 1999 South African movie, A Reasonable Man, a young black herdsman kills a baby he believed to be an evil demon hidden under a table cloth. The dilemma is that in the law there is no such thing as an evil spirit so that the herdsman is crazy and at least unreasonable. There continues to be dismay among Christians that African, Korean, and perhaps other converts continue to pay homage to their ancestors and believe in evil spirits who cause certain ills. This abhorrence exists in the face of exorcisms of the Roman Church for example which is an unabashed allegiance to the existence of evil spirits. What the defendant in the movie needed in court was for the judge to have some empathy, some of what Obama calls for and sees in Sotomayor. In his speech to Planned Parenthood on July 17, 2007, President 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 to recognize, the empathy to recognize what it's like to be a young, teenaged 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'm going to be selecting my judges." And so I ask, "Is this not we want in a free society? Culturally and politically relative legal rights." Ah! But whose culture and whose politics?"
[Dr. Gene M. Gordon is faculty emeritus of Computer Information Systems at Bloomsburg University of Pennsylvania. He considers himself a generalist and dabbles in several areas of interest and expertise. He is a public speaker, a writer, and educator who also holds the degree of Master of Divinity. Gene resides in Bloomsburg, Pa., with his wife Eleanor (Scottie), a retired lawyer.]
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