It is funny and superbly ironic, which is why conservatives miss it so entirely. In trying to derail the nomination of Sonia Sotomayor to become a member of the United States Supreme Court, her detractors criticize her because of her “empathetic” tendencies — empathy being one quality a judge must have, or ought not to wear the robe — and do so with a juvenile pitch to sympathy, an emotion that we do try to avoid in the courtroom. We’ll get to sympathy directly in a subsequent post.
Before that, however, it is useful to examine what empathy is. Here’s the basic definition:
Identification with and understanding of another's situation, feelings, and motives
Walking a mile in another’s shoes, in other words. Empathy is the ability to connect with other people; empathy is sine quo non to the application of the golden rule. As George Lakoff lays out in his recent book, The Political Mind: Why You Can’t Understand 21st Century American Politics with an 18th Century Brain, Viking Adult, 2008, empathy is now associated by cognitive scientists with something called “mirror neurons.” Plenty of other cognitive scientists are on to this, too.
For example, here’s Jack Brockman, writing in Edge: The Third Culture, introducing a post about V.S. Ramachandran’s writings:
Researchers at UCLA found that cells in the human anterior cingulate, which normally fire when you poke the patient with a needle ("pain neurons"), will also fire when the patient watches another patient being poked. The mirror neurons, it would seem, dissolve the barrier between self and others.  I call them "empathy neurons" or "Dalai Lama neurons". (I wonder how the mirror neurons of a masochist or sadist would respond to another person being poked.) Dissolving the "self vs. other" barrier is the basis of many ethical systems, especially eastern philosophical and mystical traditions. This research implies that mirror neurons can be used to provide rational rather than religious grounds for ethics (although we must be careful not to commit the is/ought fallacy). [Spot’s italics]
The law is an ethical system; it does not express society’s highest aspirations for people, but it’s a standard below which people are not supposed to fall. The aforementioned George Lakoff wrote an article recently about the consequences of a failure of empathy. Here’s an extended quote from the piece that appeared in Firedoglake in April of this year:
Should there be a commission to publicly investigate the use of torture by the Bush administration?
Pragmatic Democrats argue no, that it will divert our attention from all the other, positive things that have to be done.
I disagree. But not for the usual reasons, all of which are good reasons: Maintaining the rule of law. Punishing the criminal activities of the Bush administration. Beginning to reclaim our moral stature in the world. Refusing to accept the we-were-just-following-orders defense that must never again be tolerated. All good reasons. But there is one overriding reason behind all of the others.
It is crucial to understand why torture is so overpowering an issue. Not killing and maiming hundreds of thousands of innocent civilians in the shock-and-awe approach to Iraq. Not ignoring the horrors of Darfur. Not the thousands of gun deaths and maimings in America each year. Not all the deaths and illnesses that come from the denial of care by a private health care system that cares about profits over people. There are plenty of things to be outraged about. What is it about torture?
The clearest clue comes from Greg Mitchell of Editor & Publisher in his piece at Huffington Post, retelling the story of a female American G.I., Alyssa Peterson, who committed suicide after refusing to participate in the torture of Iraqi prisoners.
"The official probe of her death would later note that earlier she had been "reprimanded" for showing "empathy" for the prisoners. One of the most moving parts of the report, in fact, is this: "She said that she did not know how to be two people; she ... could not be one person in the cage and another outside the wire.""
Repeat: "She did not know how to be two people..." Reprimanded for showing “empathy.”
We now know from the study of mirror neuron systems in the brain that empathy is physical, a capacity built into our very bodies. It is what allows us to feel what others feel and appears to be the basis for human connection and the capacity to care about others. Our native neural capacities for empathy can be strengthened by how we are raised, or it can decay when empathy is not experienced — or we can be trained to develop neural circuitry to bypass natural empathy.
And now think again of Brockman’s question “I wonder how the mirror neurons of a masochist or sadist would respond to another person being poked?”
A good judge empathizes with every person who walks into the courtroom: the parties (all of them), the witnesses, and yes, sometimes even the lawyers, although they are usually at the bottom of the list. If a judge can’t empathize, the judge cannot be a champion of the ethical system called the rule of law.
Any trial lawyer, or one who has won some cases, anyway, will tell you that engaging the empathy of the judge or jury is a key element to winning any case.
The ability to empathize with the litigants (plural) is a necessary ingredient to impartiality; sympathy, as we will see, is not.
Next up: Frank Ricci and the sympathy vote.