Elvin Lim is Assistant Professor of Government at Wesleyan University and author of The Anti-intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. In the article below he reflects on Sonia Sotomayer’s confirmation hearings. See his previous OUPblogs here.
Judge Sonia Sotomayor’s nomination to the Supreme Court is probably going to be confirmed, but only after Republicans in the Senate put up a fight to appease the base that they tried to block the inevitable. There is value, though, in airing these differences, for they explain the irreconcilably liberal and conservative conceptions of justice that exist in America.
Conservatives have every right to disagree with Judge Sotomayor’s judicial judgments, as they are entitled to contest her understanding of the constitution. Most of their opposition will focus on the New Haven “reverse-discrimination” case (Ricci v Destafano) and this infelicitous remark: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” In short, the gist of the debate will be about the ambit of the Judge’s fellow-feeling. That is why Democrats and President Obama believe in the relevant virtue of “empathy” in a judge, whereas Republicans want a judge “for all of us” rather than “just for some of us.” Let us unpack this significant difference in perspective.
Democrats in general believe that justice is about helping the dispossessed, whereas Republicans in general believe that justice is about equality before the law. Democrats believe that justice is necessarily a distributional value. They believe that the world we are born into is structurally unfair and steeped in institutional biases, and it is the duty of the privileged and powerful to come to the aid of the dispossessed. That is why Democrats project their empathy to the particular few who they feel have been disadvantaged and not to all.
Republicans believe that the state of the world we are born into is morally neutral, and it is up to each individual to make the best of one’s talents in it. Because the ambit of Republican fellow-feeling extends to all, there is no extra virtue in empathy. Hence Democrats always presume an injustice to be righted (hence they are “progressive”), Republicans valorize and want to preserve the status quo (hence they are “conservative.”) These are irreconcilable positions because they are starting premises to much of the debate between liberals and conservatives. Logic can only be deployed to adjudicate the move from premise to conclusion, it can do nothing to discriminate between the choice of argumentative premises.
The pure liberal and pure conservative conceptions of justice are probably irreconcilable. But while the goalposts are not movable, we are. Ironically, empathy – the standard for Supreme Court justices that is under debate – is exactly what the two parties need to possess. If our starting premises are different and irreconciliable, the least (and probably the most) we can do is to try to understand why the other side thinks as it does. I think liberals can start by asking conservatives that if empathy is such a vice, would they teach their children to do onto others only what they would not want others to do unto themselves? And conservatives can return the favor by asking liberal parents this: if empathy is such a virtue, then shouldn’t every wrongdoing be at least partially exonerated?
Emotional and intellectual identification with alternative conceptions of justice is neither the only route to justice nor an insurmountable roadblock to it. Liberals are right in one sense – only empathy about the other party’s understanding of empathy will help resolve the partisan stand-off in Washington – but they should also practice what they preach.