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You Were Right the First Time, Mr. President: The Supreme Court Needs Empathy

The evolution of empathy has fostered the evolution of democracy over history. Shouldn't the ultimate litmus test for a Supreme Court nominee be the empathic maturity that he or she brings to the task of interpreting American laws?
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President Obama has nominated Elena Kagen to be the 112th Justice of the Supreme Court. Strangely, in introducing his new nominee the President made no mention of the 'E' word. Apparently the word been banned at the White House. The mere utterance of the word empathy sends shivers down the spine of the most seasoned political operatives in the Obama administration. Here is a President who for years claimed that empathy was the guiding philosophical principle of his public and private life, who now apparently has taken an oath of silence, for fear that the mention of the term might compromise the prospects for his Supreme Court nominee and, perhaps, other aspects of his foreign and domestic policies.

Empathy has suddenly become a four letter word, and the reason goes far beyond the question of the way a Supreme Court nominee should approach a legal question. At the root of the matter is a sea change in our thinking about what constitutes human nature and the socialization process.

For the past two hundred years, we have lived with a rather skewed idea about human nature that took root at the very beginning of the market economy and nation-state era. The Enlightenment philosophers -- John Locke, Adam Smith, Marquis de Condorcet, Benjamin Franklin, etc. -- came to believe that human beings are rational and detached creatures, competitive in nature, self-interested to the core, utilitarian in spirit, and driven by the need to secure their own autonomy. Consequently, we have placed in high regard the qualities of being non-emotional, detached and objective in our social relations and embedded these notions in our educational system, business practices and governance.

In recent years, however, these conventional ideas about human nature have been put into question. Evolutionary biologists, neuro-cognitive scientists and child development researchers are discovering that human beings are biologically predisposed to be empathic and that our core nature is not to be rational, detached and competitive, as many of the Enlightenment philosophers suggest, but affectionate, highly social, cooperative and interdependent. Homo sapien is giving way to homo empathicus.

Empathy is an often misunderstood word. Critics believe that it is merely "the outpouring of feelings for another" when, in realty, it is the actual process by which the healthy human mind functions. The ability to empathize -- that is, to read and respond to another "as if" he or she were oneself -- is the key to how human beings engage the world, create individual identity, develop language, learn to reason, become social, establish cultural narratives and define reality and existence.

Rene Descartes, Emmanuel Kant and other Enlightenment philosophers believed that emotions are the enemy of rational calculability. If the emotions are free to roam they can distract and even overwhelm the rational mind. For the most part, Enlightenment philosophers viewed the human being as made up of a bodily machine that sends sensory signals to a mind that then uses rational thought to decipher the messages and form judgments. Descartes saw thinking as a separate domain that while physically connected to the world, acts independently of it.

The Enlightenment view of the ideal human being is characterized and satirized in the popular television series Star Trek. Mr. Spock, the rational being from the planet Vulcan, resembles human beings on Earth in physical appearance but is devoid of the capacity to express human feeling and emotions. His continuous interplay with the very emotional Captain Kirk is one of the main motifs of the show. In crisis situations, his judgments, although completely rational, often lack the empathy necessary to appropriately address the social reality at hand. His cool, detached, and disembodied persona fails to grasp the underlying emotional drama being played out and, as a result, his suggestions are often overruled. One suspects that many of the critics of the empathic litmus test for a Supreme Court nominee would prefer to nominate a Mr. Spock, as opposed to a Solomon, Jesus or Martin Luther King, to the highest court of the land.

In fact, neuro-cognitive scientists are discovering that the proper functioning of the human mind requires a delicate interaction of both feelings and abstract reasoning. Scientists are finding that when parts of patient's brains that allow them to normally experience feelings are severely damaged, their reasoning processes breakdown. Even though the patients are attentive, retain memory, are able to perform calculations and can master abstract problems, they are unable to correctly read situations and respond in an appropriate social manner.

Empathy is the psychological means by which we become part of other people's lives and share meaningful experiences. To empathize with another is to experience their individual struggle to be. One identifies with another's fragility and vulnerability, recognizes their one and only life, and roots for them to flourish. To empathize is to show solidarity with another's journey and, through acts of compassion, celebrate their very being.

A heightened empathic sentiment is "the invisible hand" that makes it possible for large numbers of people, unrelated by blood ties, to none-the-less create social bonds in more complex, interdependent and integrated societies. When we say to civilize, we mean to empathize.

Without empathy, it would be impossible to imagine a social life and the organization of society. Try to conjure up a society of detached rationalists or narcissists, sociopaths or autistically challenged individuals. Society requires being social and being social requires empathic extension.

All of which gets us to the nomination of a new Justice to the Supreme Court. We need to appreciate the inextricable connection between the core values that govern our society and legal system and empathic sensibility. Our nation is founded on the cardinal principles of freedom, equality and democracy. Our laws, at least in theory, are supposed to reflect the institutionalization of these basic values. All three of these values, however, flow directly from our ability to empathize.

Freedom requires that one is treated by others as an end not as a means. One can't really be free in a society where everyone treats each other in an exploitative or instrumental manner. True freedom, therefore, is only possible in a society that lives by the "golden rule." "By doing onto others as we would have others do unto us" we express our support for the optimizing of each other's life. This is the embodiment of what freedom means. A society that lives by the golden rule and embeds it in its laws and public policy is a free society. The golden rule is rarely exercised in authoritarian regimes.

Equality, the second of the great core values written into American law also flows directly from empathic sensibility. When one puts oneself in another's shoes or identifies with another's struggle as if it were ones own, he or she is experiencing the other as an equal. The empathic act dissolves status boundaries and other distinctions that separate one from another. One experiences another as a human being, not unlike oneself and is therefore able to put aside social conventions that often draw an artificial boundary between people. In this sense, empathy is very different from sympathy. It is possible to feel sorry for others without deeply identifying with them, whereas empathy requires experiencing the other "as if" you "are" that person -- in other words regarding the other as an equal.

Lastly, the ability to recognize oneself in the other and the other in oneself is the very basis of the democratic experience. To empathize is to acknowledge that each life is unique and worthy of respect in the public life of the society. The evolution of empathy has fostered the evolution of democracy over history. The more empathic the society, the more democratic its values, laws and governing practices. Less empathic cultures tend to be more totalitarian in nature.

If the fundamental values that make up the heart of the American legal system are freedom, equality and democracy and those values, in turn, flourish or wither to the extent that empathy is nourished or thwarted by society, then doesn't it stand to reason that the ultimate litmus test for a Supreme Court nominee ought to be the empathic maturity that he or she brings to the task of interpreting American laws?

President Obama got it right the first time around when he announced that empathy should be the critical criteria for making judicial appointments. By hiding from the term, he does irreparable damage to the very vision that swept him into the Presidency.

Jeremy Rifkin is the author of The Empathic Civilization: The Race to Global Consciousness in a World in Crisis (2010). He is an advisor to the European Union and heads of state around the world. Mr. Rifkin is a senior lecturer at the Wharton School's Executive Education Program at the University of Pennsylvania.