Nobody doubted that Elena Kagan would be confirmed to the Supreme Court, certainly not by the time her nomination reached the Senate floor. Much like the main event at WrestleMania, the machinations of major players, the careful choreography, and the last minute double-crossing (Ben Nelson!) proved far more interesting than the final outcome.
Most memorable of all was Alabama Senator Jeff Sessions donning his philosopher's cap during the debate on the Senate floor. Sessions was installed by the Republican leadership as ranking member of the Senate Judiciary Committee after Arlen Specter bolted the GOP. He has clearly relished the role, taking the lead in framing the debate for the Republicans in both the Sotomayor and Kagan hearings. Knowing that he stood no chance of derailing either nominee, Sessions has spent his time trying to deconstruct the President's views on Supreme Court jurisprudence and, specifically, the role of empathy in judicial decision making.
The learning curve has been steep. Last year, when President Obama called empathy "an essential ingredient for arriving at just decisions and outcomes," Sessions was downright perplexed. "I don't know what empathy means," he confessed, though that didn't stop him from calling the President's comments "dangerous" and assailing them in the Sotomayor hearings. "In my view such a philosophy is disqualified," he said, "Such an approach to judging means that the umpire calling the game is not neutral, but instead feels empowered to favor one team over another."
This contention--that empathy and neutrality are at odds with each other--has become the central argument of Sessions's attack on the President's views, even after he stopped using the word empathy to describe them. This year, however, Sessions decided to up the philosophical ante by broadening his thesis to include a little epistemological speculation on the search for truth, or lack thereof, among legal progressives.
It's "pretty well known," Sessions said, that Elena Kagan is "not a nominee committed to restraint or objectivity." This is a rather breathtaking statement, for these qualities seem indispensable for a judge. Why might the President pick a nominee lacking in them? "Perhaps this is so because many liberal activists in America have lost faith in the idea of objectivity, which means they have lost faith in the reality of objective truth, the finding of which--the finding of truth--has been the goal, the central focus of the American legal system since its creation."
Kagan and her ilk-- "modern law school minds and some false intellectuals"--are "far removed from real trials" and the legal hurly burly that goes along them with. They don't see the "necessity of rules for civil order" and spend their days in the faculty lounge, descanting on their dangerous ideas, "that laws are just tools for the powerful to control the powerless and that words can't have fixed meanings."
So there you have it. The greatest threat to the rule of law is not an overburdened judiciary or unequal access to the courts, but the rampant nihilism of Elena Kagan, Barack Obama, and apparently most everyone who stands to the left of Jeff Sessions. Such people, on Sessions's account, favor judges who rely on empathy to make their decisions, for they believe that, in a world without truth, the law provides no clear direction, only the opportunity to take sides.
Students of intellectual history will find this a very strange account of empathy, which has often been regarded as not at odds with impartial decision-making, but essential to it. Adam Smith certainly thought so. Long before The Wealth of Nations changed the face of modern economics and made him the patron saint of free-market evangelism, Smith argued in The Theory of Moral Sentiments that the only way we could step away from our strong prejudices was to step into another's shoes. By this practice, we come to understand the moral contours of our social world. That knowledge is valuable to us when we have to evaluate the decisions and behavior of others, but it is invaluable when we have to judge our own.
In order to make "any proper comparison between our own interests and those of other people," Smith says that we must view those interests "with the eyes of a third person, who has no particular connexion with either, and who judges with impartiality between us." That person is the "impartial spectator," the phantom of our imagination we consult whenever we want to be neutral judges in any matter involving us. We cannot trust our own opinions, says Smith, nor those of others with a vested interest in the outcome. Instead, we need a disinterested opinion, one we provide by learning to stand apart from our own immediate concerns.
Empathy teaches us how. By it, we strengthen our imagination by conceiving the lives of others and train ourselves to be impartial judges of our own interests. Empathy also teaches us to weigh the concerns of others equally. Humans have a natural tendency, Smith believed, to overvalue the concerns of the rich and powerful and to undervalue and even neglect those of the poor and dispossessed. "The poor man goes out and comes in unheeded," he says, "and when in the midst of a crowd is in the same obscurity as if shut up in his own hovel." Empathy acts as a counterweight, one that trains us to take into account the concerns of all people, not only those whose lives most interest us or, for that matter, appear most like our own.
The President has highlighted this particular virtue of empathy in the emphasis he has placed on understanding the law as it "affects the lives of ordinary people," and Kagan herself, in her tribute to Thurgood Marshall, singled out Marshall's belief that it was the responsibility of the courts to show "special solicitude for the despised and disadvantaged."
But if the practice of empathy can train one to be an impartial judge, does it have a further role in deciding the outcome of a case? The answer one gives will likely depend on her opinion of the clarity of the law, especially constitutional law. David Souter recently warned that it is "egregiously" wrong to think of Supreme Court Justices "just sitting there reading constitutional phrases fairly and looking at reported facts objectively to produce their judgment." But this is precisely what Senator Sessions thinks. On his account, all that is required of constitutional interpretation is an impartial judge committed to the "reality of objective truth." Simply give the law a close reading, and the truth will out.
Those, by contrast, who believe that the law is not always so clear, that Constitutional values will sometimes be at odds, will argue that Justices will occasionally have to look beyond the law to some extra-legal tool to decide the cases before them. Whether or not empathy is the best tool available is a secondary concern. The principal debate is whether such tools are even necessary.
Senator Sessions certainly doesn't think so, nor do his Republican colleagues, who voted overwhelmingly to defeat Kagan's nomination. Without the majority in the Senate, their opposition was merely symbolic, a vote against a way of judging rather than a particular judge. With the fall midterms, however, that could very well change. If so, the next time we have a nominee, the debate over empathy, objectivity, and the law will be far from academic.