Judge Roberts & Empathy

An attempt to understand, but not the last word!

Here I want to reflect upon a matter that some of those who oppose or have doubts about Judge Roberts have articulated, usually with emotion, over the last three days. I refer to the conviction and feeling of some people that he does not have sufficient empathy for the disadvantaged, disabled and victims of discrimination.

[But, first, to set the context: Two days ago I circulated a “discussion starter” on “Judge Roberts and the Christian Mind” (which as I predicted was both much appreciated and also attacked with vigor). In this act of thinking aloud, I suggested that by his own commitments Roberts intended not to allow the Christian Faith to enter substantially into his mindset as he performed the duties of a Justice on the Supreme Court. Now, 2 days later, having heard the whole of his testimony and the statements of those called by the Senate as witnesses, I am quite clear that this is truly his position. And it is one that most commentators think is perfectly normal and which even the “Christian Right” seems to think is appropriate.

At the same time, I want to affirm that there seems to me no doubt but that he is an impressive human being with the kinds of skills one looks for in top-class lawyers. And I want to state again what I wrote two days ago that as far as I can tell he is a man of Christian faith and morals, who is a devout Catholic. Yet, as with many of us, his faith seems to be privatized – it is for home and family and church but not for the public square, except minimally. In his case the “mindset” that he will bring to the Court is to be one that does not allow considerations/doctrines which are part of Catholic Faith to enter substantially into his judgment. Never once in any of his replies or statements did he intimate that as a Christian man he would be guided or influenced by the Christian Faith. This said, he is amongst the best of the those available and I sincerely hope he is confirmed by the Senate.]

Now to EMPATHY.

I have had the experience on several (for me) important occasions of being required to face the question as to whether or not I truly understand, feel, have a real sense of, the pain of a person who for no fault of her/his own endures discrimination. For example, I was once interviewed for a position of professor of theology in an institution where a third or more of the students were women. And this was just before the C of E embraced the ordination of women. Certain questions to me sought to ascertain whether (without regard to my own beliefs about women in orders) I really understood their aspirations, feelings, and sensibilities and thus whether I could be sensitive to them in my teaching and attitudes. One asked if I would be willing to take therapy to ensure that I would be sensitive to these women at this stage in their lives.

Much the same kind of question has been, and is being, asked of John Roberts Esq. He has made it very clear that as a matter of law all people are equal before the law and that discrimination of various kinds is against the law. There is no problem of where his rational mind is – it is firmly in the position of equality for all. Yet the mind is not the whole soul and some people want to know where the rest of his soul is, especially where “his heart” is. Does he actually feel the pain of people who are obviously still in modern America the recipients of discrimination? What certain people are looking for is to see in him, to sense within him, genuine empathy with the real victims of discrimination. If they see this, then, I guess, they will see him as a full human being and have a wholly different evaluation of him.

Let us be clear. Roberts never said one word to suggest that he is a racist or a bigot or a hard-liner or a separatist or anything like this. At the level of propositional statement and intellectual clarity, he made it clear that he is all in favor of equal treatment before the law for all people. At the same time, he showed no special empathy for those who, in the American situation, have not been always fully included within the American dream, liberties, rights and opportunities, and who fear that the present trend of the Court is to erode the “freedoms” they have gained through painful experiences.

I suggest that to have such empathy is not of necessity to be biased or to judge a case in advance; rather, it is to allow all the faculties of the soul (the affections and will as well as the intellect) to function together in the way one looks at people and hears what they say. In court, any case must be judged according to the constitution, the law, precedents, arguments offered etc; yet this does not exclude the exercise of the imagination and emotions in feeling a special identification with the disadvantaged, poor and outcasts. After all, God as the Judge, is portrayed in the Bible as the One who judges righteously but who has a special place in “his heart” for the poor and needy.

Peter Toon September 15 2005