Justice for the Privileged

Thursday, June 11th, 2009

Take empathy out of the concept of justice and what you have left are rules: simple, mechanical, lifeless.

“Are we really going to insist,” Texas Sen. John Cornyn asked the other day, after President Obama talked about closing down the Guantanamo detention facility, “that the jihadist with a suitcase nuke captured in Times Square be read his Miranda rights . . .?”

In other words, who needs all this complication — the luxury of rights and other froo-frah — when we’ve got so much evil bearing down on us? Oh, Republicans! They operate on a spectrum that runs all the way from mockery to fear as they pursue their single-minded assault on the new president and the agenda he was elected to implement.

If you’re tired of the great American experiment, or never quite believed in it, or have too much to gain by circumventing it, then you’re on the team. The party platform is pretty clear: Let us hollow out every core American value, worship the shell (think Founding Fathers, think Our Precious Freedoms) and quietly keep wealth and power where they belong, in the hands of the entitled.

So, empathy. Can controversy get more inane? The Republicans are aghast that Obama would impose an “empathy standard” on his nominee for the Supreme Court, as though this word could be removed from anything that is human.

Well, it can, of course. This was the George W. Bush era. In case you’ve forgotten: “Once off the plane, they were ordered to assume kneeling positions for hours on end; those who tried to sit back were hit and kicked. These men had just been subjected to a nauseating 20-hour flight from Afghanistan and were now hunched over in the night air without the faintest idea of where they were.” Thus did civil rights attorney Marc Falkoff describe conditions at the Guantanamo detention facility, in an interview back in 2005, when the world was first learning about the hideous U.S. abuse of prisoners.

This is the empathy-free world Obama wants to delegitimize and eventually shut down. Doing so is why he was elected president, a fact his opponents are hell-bent on forgetting.

And so, when word got out that Supreme Court nominee Sonia Sotomayor had empathy for people — no matter this is a trait she shares with everyone else on the planet (with the possible exception of Dick Cheney) — the party spokespeople sharpened their pitchforks and went after her, questioning her ability to be impartial if she actually possessed emotions.

As I came to grips with my own incredulity that empathy was under attack, I thought suddenly about a passage from “War and Peace,” a book I haven’t read in 30 years. Tolstoy’s words, dormant all these decades, suddenly reignited, and I found myself back in a Moscow occupied by the French, as the book’s protagonist, who has just been arrested, stands before one of Napoleon’s generals.

“Monsigneur!” exclaimed Pierre in a tone that betrayed not offense but entreaty.

Davoust lifted his eyes and gazed searchingly at him. For some seconds they looked at one another, and that look saved Pierre. It went beyond the circumstances of war and the courtroom, and established human relations between the two men. Both of them in that one instant were dimly aware of an infinite number of things, and they realized that they were both children of humanity, that they were brothers.

Empathy, born of eye contact, humanizes a cruel bureaucrat, at least for a moment, long enough to spare Pierre an otherwise certain execution. I doubt there’s another passage I remember so vividly in those 1,444 pages.

So Obama, during the presidential campaign, said judges should have “the empathy to recognize what it’s like to be a young, teenaged mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old.” And he described Judge Sotomayor in empathetic terms: someone with, as George Lakoff put it last week in a brilliant essay (“Empathy, Sotomayor and Democracy: The Conservative Stealth Strategy”), “a life story that would allow her to appreciate the consequences of judicial decisions and the causal effects of living in an unequal society.”

What sticks in the Republican craw, what they opportunistically twist into “racism,” is the fact that Sotomayor and Obama would extend their empathy into the barren reaches of the enemy and the chattel classes. The impartial jurisprudence the Republicans defend had no eye contact to spare for historically shifting categories of second-class citizens, beginning with the slave on the auction block.

Justice for the privileged! For the rest, the rules — economic, military, legal — are plenty good enough. Obey them and we’ll take your blindfold off. We may even return your prayer rug.