The Unbearable Lightness of Empathy
As Kagan progresses through the Kabuki of the confirmation process we can expect to hear her supporters invoke the idea of empathy as a kind of liberal counterpoint to Roberts’s umpire analogy. The more I think about empathy and judging, however, the less I think that it has any substance at all.
In the case of Sotomayor, empathy was associated with identity politics. There was some ineffable something about being a wise Latina that gave Sotomayor special insight into the way that the law effects “ordinary people.” In Sotomayor’s case one could at least construct a facially plausible story about her biography in which her experience provided some insight into “ordinary people” outside of her legal expertise.
Not so with Elena Kagan.
There is nothing in her biography to suggest any special insight into the lives of “ordinary people.” The Upper West Side (my experience with native New Yorkers is that some non-trivial percentage of them take a positive pride in NOT understanding America beyond the five boroughs), prep school, Princeton, Oxford, Harvard Law School, a Supreme Court clerkship, work at an elite law firm, the University of Chicago, the Clinton White House, HLS again, and the Solicitor General’s office. There’s nothing in there that screams, “Special connection with the poor and the downtrodden, or even with the middle class and doing fine.” From what I’ve seen, Kagan is an intelligent and decent person. She may well be able to see the world from the perspective of “ordinary people,” but if she does so it is by an act of imagination rather than memory.
None of this will keep folks from lauding Kagan’s “empathy.” If empathy is no longer tied to biography and identity politics is there anything left of it? The answer, it seems to me, is “Not much.” When empathy is invoked in contemporary debates about the judiciary, I think it’s best to simply see it as a gesture toward a set of substantive positions. To be empathetic is to be solicitous of the state in its role as regulator but less so in its role as defender of national security. It means a somewhat more pro-defendant position on criminal procedure. It means a preference for national rather than state government. Above all else, I suspect that it means holding the kinds of opinions that we all expect Elena Kagan to hold on the various cultural arguments — gay rights, abortion, etc. — that form the detritus of the sexual revolution. None of this, however, really has to do with empathy. Rather, it simply strikes me as a substantive vision of the relationship of the state to individuals, businesses, and local communities.