Empathy. Now It’s a Bad Thing. Sorry, Judge Sotomayor

Jim Terr
Jim Terr

Guest author, Jim Terr (www.JimTerr.com),  presented the following on June 2, 2009 on KUNM in Albuquerque.  He said what I’ve been thinking throughout this nomination of Sonia Sotomayor and the negative turn of the word empathy. 


Empathy By Jim Terr   Click for mp-3 audio

You can also hear the live version at http://kunm.org/audiohurl.php?s0=060209TERREMPATHY.mp3&t=Y    

 I’ll bet you didn’t know “empathy” was a bad word. In fact, in my book, it’s one of the best words, one of the best qualities, a person could have. If I had kids, I think I’d be most proud to hear them described as honest, fair-minded and kind – which is pretty much synonymous with “empathetic.” Empathy meaning the tendency or ability to put yourself in another’s shoes – a necessary quality for being able to follow the golden rule.


But even before President Obama nominated Sonia Sotomayor to be the next Supreme Court justice, the right-wing spin machine was complaining that he had mentioned “empathy” – the ability to bring the human dimension, a human understanding, to judicial decision-making – as a quality he was looking for. The right wing opinion makers were on a roll, declaring that such a communist, socialist, anarchist quality as “empathy” had no place in Supreme Court decisions. Except, of course, in cases to be decided in their favor. But hypocrisy is another essay.


Millions of people who couldn’t cite one court case as an example of being strictly decided on a so-called “constructionist” basis, versus one decided on a nuanced, real-life, human basis, were suddenly incensed at the idea that “empathy” could be brought into play in judicial decision making. Which of course they’ll hope like hell it is, if they’re ever brought before the court.


Evidently Frank Luntz got a 3 a.m. phone call on this one, the request to come up with a key word to sink the Obama nomination before it even occurred. Frank Luntz is the political wordsmith who’s hired to help re-frame invasions as “liberations”, inheritance taxes as “death taxes”, and all those pesky little issues that can be swung just the right way if only they’re re-titled with the correct word – which is actually about all it takes.


The right wing is three times, five times, maybe TEN times as expert at this as the Democrats, in case you haven’t noticed. But maybe they’ve mis-fired on this one, maybe Frank Luntz was a little groggy or mis-heard the assignment when he got the 3 a.m. call. After all, isn’t “empathy” – assuming most people even heard the word before this week – sort of essential to the Christian faith and the American way? I HOPE so.


President Obama, as usual, is missing a golden opportunity to face this issue head-on. I’m referring to the issue of Spin, this wordsmithing and demagoguing which muddies almost every important issue. He’s being presented with yet another “teaching moment” where he could point out, from his very visible and respectable platform, how this spinning is done, how well-chosen words are used to turn everything on its head.


He seems to think that by speaking in his clear, earnest, fair-minded manner, he can make reason prevail. He may be right, but he’s done nothing to raise awareness of this process of spinning and re-framing which will ultimately bring him down and sink his best efforts, as it does everyone’s. Watch the word “socialism”; watch the term “single payer.”


If judges were able to judge without bringing human values and “empathy” to bear, there would be no need for judges, would there? It could all be done by computer, thus saving the salaries of those nine Supreme Court judges and their clerks – and all that empathy!


10 thoughts on “Empathy. Now It’s a Bad Thing. Sorry, Judge Sotomayor

  1. When I think of judges being asked to impose empathy, I think of defense attorneys outlining the poor abused life of someone who just raped and murdered a young girl as if such horrific behavior can be excused because of a bad childhood. We see this happening all the time. Sorry, I don’t think judges who are deciding on rights outlined in the Bill of Rights should be swayed by empathy. In most all instances in life, empathy is an honorable trait, but it becomes dangerous when judges are asked to excuse bad behavior because they should be showing empathy. When our judges don’t use the rule of law to guide their decision, we become no more civilized than the heads of Muslim tribes gathering the elders and deciding on their own brand of justice.

    1. “when I think of judges being asked to impose empathy, ” — that is exactly the problem. Who would think of judges being asked to “impose empathy” except someone addicted to right-wing radio? Empathy is not something “imposed”, and is nothing to fear, and doesn’t imply (to me) coddling criminals, excusing rapists, etc. – but thanks for “sharing” what’s on your subconscious mind. I’m curious how many of these people suddenly stirred up about “empathy” and “activist judges” have expressed concern about right-wing court decisions based on whimsy and empathy and personal taste (oh, don’t tell me – there haven’t been any – Oh, I forgot about Bush v Gore, as specified in the Constitution). TEMPER JUSTICE WITH MERCY (EMPATHY)

  2. As somewhat of a left-winger, I have been enjoying listening to the right wing’s reactions to Obama’s actions. I think all of us should open our minds to another side, ESPECIALLY when WE are in power and when we “own” both thw White House and Congress. As for “empathy”, I think we should assume that the critics of “empathy” are no insane, evil, or stupid. I’m guessing they fear “empathy” is a new term for coddling criminals…a la ACLU. And if that’s true, the coiners of “empathy” need only to carefully spell out what it means.

  3. I am about as conservative as they come. Yet I know no other conservatives who have any objection to “empathy” per se. (If one checks the IRS records, conservatives/Republicans give a lot more to charity than do the much more numerous liberals. And I have to assume that alot of this giving is out of empathy every bit as much as out of charity.)

    But empathy has no place in making a legal decision. If you go to the Supreme Court and have 9 Justices, all with different life experiences, just which one’s empathy do you want to decide your case? If empathy is to enter the courtroom, it should, if at all, come when a jury decides one’s fate.

    Can you imagine empathy being used to decide something as simple as a call in sports? AN umpire decides the batter is being harrassed by the home town crowd, so his empathy for the batter makes a strike into a ball? An NBA official decides that a 3-pointer is a difficult shot. So, even if the player’s right foot is inside the 3-point line, he scores the shot as a 3-pointer?

    If we are going to have legal cases settled based on empathy, why bother to have laws? Just drag the people you disagree with, or have the people who disagree with you drag you, into any court and see who the judge has the most empathy for.

    No one is criticizing “empathy.” The criticism is in regard to how it might be applied. Judge Sotomayor thinks her empathies as a “latina” would lead to better decisions than those of a white male judge? She has said that “Policy is made in the appelate courts” not in the legislature. (Excuse me, but I want my laws made by our elected representatives, NOT by judges’ empathy/feelings.)

    We have a pseudo-socialist in the White House. We do not need one on the Supreme Court. Every one of us is now more than $45,000 in debt to pay off the Obamanomics recovery plans. I really don’t want an empathetic judge backing him up when people start challenging the laws that are being ignored.

    1. “Every one of us is now more than $45,000 in debt to pay off the Obamanomics recovery plans. ” The fact that there’s no mention of the $3 trillion Bush Iraq-war-to-nowhere debt tells it all on your POV. Respectfully,

  4. OK, Jim, let me mention Bush and the fact that he left us some debt. Then you need to go check your facts on the cost of the war in Iraq. You might say it goes to “nowhere.” But then, you haven’t been there, have you?

    My son, John, is a Marine Captain on his third tour to Iraq. He has spent more time there than he as in the USA over the last 5 years. He goes back with no complaints because he has seen all the good that we Americans have brought about over there. And he has regularly seen the gratitude expressed by the Iraqi people for our help. (You might also note that we have not been attacked since 9-11. Seems Alquida is busy over there.)

    Bush left us $1.3 trillion in the hole. Obama has already spent three times that, with plans to spend 8 times that, and still hasn’t gotten us out of the hole. Yet, Obama still keeps “digging” the debt hole.

    Come on, Jim, you used one sentence to quote me. Then you used one sentence to incorrectly state the cost of the Iraq war.. and then were as incorrect about the results of the war as Harry Reid. You need to start getting your information from sources other than NBC, MSNBC and the bloggers. (You might even try actually listening to Rush … and then checking the sources he gives for all of his facts.)

    Oh well, I hope we can continue the dialogue. You present your POV’s well…. even if they are incorrect. LOL

    Respect back at you,

  5. Let’s get back to empathy. Gore vs Bush was a sympathy vote, not empathy. Let’s take the baseball umpire analogy. Court decisions cannot always be as black and white as missing the strike zone. Someday a case will get to the Supreme Court calling to task police who railroaded the wrong person into a death sentence. Understanding both sides empathically would have to count along with the Constitution, precedent and so-called “cold facts”. Take crimes of passion. What besides empathy accounts for the usual judgment that these killers get lesser punishments than a drive-by shooter who is acting out of similar emotions? If human interaction is strictly judged on laws and rules, we have something called fascism…or dictatorahip…or one of those fun governmental concoctions.

  6. Jay – with all due respect for your son’s service (and I do respect – I’ve done a documentary on vets – plus more), we were conned into the Iraq adventure, and hundreds of thousands have died as a result. Despite some positive results, arguably (especially if you’re prone to justify the adventure), the Iraqis, who are in a position to know, want us out. Does their opinion count? Beyond all that, if you’re citing the Iraq war as preventing terrorist attacks since 9-11, you’re clearly being nonsensical. Even Bush (finally) admitted Iraq had nothing to do with 9-11, and if Bush and Co. had not been incompetents, and had listened to plentiful warnings, there might have been no 9-11 in the first place. But hey, whatever it takes for you to feel good about your son being there. Get him out of there soon, that’s my advice. Then, without the need for justification, you might see how you’ve been reamed.

  7. Jim, I like “talking” to you because you stick to what you believe .. even when you are wrong. We were “conned into the Iraq adventure” under the same information and intelligence that your hero Bill Clinton used to send cruise missiles into Bagdad. GW used all of the same reasons that Clinton used. But GW had experienced 9/11 and the invasion of Kuwait.

    I wil wait for you to show me where “hundreds of thousands have died” because of our efforts in Iraq. If you would actually check your facts (instead of watching MSNBC), you’d find that many thousands fewer have died annually in Iraq since we intervened. (Remember the guy called “Chemical Ali?) He killed tens of thousands of Kurds with those “non existant” chemical weapons that President Clinton said Saddam had.

    And just out of curiosity, how do you come up with “if Bush and Co had not been incompetents … there might have been no 9-11 in the first place?” You need to do your research somewhere besides by watching Olberman. The 9-11 attacks were planned BEFORE Bush took office.

    Bush’s policies kept us from another attack for the last 8 years. The phone intercepts that Obama said he would end prevented attacks on the Brooklyn Bridge, the Holland Tunnel in NYC, and other places. (FYI: Obama has increased the phone intercepts by 10%. Obama is such a man of his word.)

    As for telling my son to get out of Iraq, I just got an email from him two days ago. He will be coming back in August. He will be going to a retraining program for him to get back into his Cobra helicopter. And he will be going back for his FOURTH tour in Iraq next March.

    Unlike what your liberal media tells you, John (who has been on the ground in Iraq for a lot of time) says the Iraqis really like Americans. John’s immediate supervisor is a three-star general. He has given John (and some of his fellow officers) permission to “wander the streets with discretion. John has a problem equating what he actually sees/experiences in Iraq with what he sees on TV.

    John regularly gets asked to play soccer with the Iraqi kids. Their parents invite him and his fellow Marines into their homes for tea. (That is a big deal in Iraq.) Our troops have pulled out of the cities. When “shit happens,” the Iraqi forces not only don’t ask for help, they refuse it. They are starting to stand up on their own. If you have a problem with what has been achieved, then YOU have a problem.

    The United States is the greatest power for good on this planet. If Obama wants to take us down to a second-rate power, that’s up to him. But he has only 3 1/2 years to do it. He is Jimmy Carter Jr. He will be out in one term. And, under his “leadership”(?) we will have a significant terror attack in this country within 6 to 9 months. (I’d ask if you wanted to bet on that. But, Obama already has you $45,000 in debt to pay off his current plans.

    I will take my news from the front lines, not from the liberal headlines. But the liberals can criticize GW for whatever reason only because he kept us from being attacked again for 8 years. Obama is feeding us to the wolves. I am trained to handle it. Are you?

    Looking forward to your reply,

  8. Jay – I apologize for not reading your entire post, but since it appears to be a regurgitation of certain news/opinion/entertainment sources, I think I get the idea. Unlike your unfounded assumptions of where I get my news (I do not have a TV, therefore I do not watch MSNBC, etc., and my only on-line sources are NY Times, Reuters, ABC, Fox, etc.), you have admitted to and advocated Rush Limbaugh consumption. I spent a couple years listening to him til he got totally repetitive and boring to me, and I know the right-wing demagoguery techniques by heart, and I am not interested. We had to put up with Bush for 8 years, so why not take deep breath and just enjoy the agony for yourself for a while. Take care.

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