shuffling the empathy deck, time travel, america’s elite a sad lot

common thread

What person, trusted with great responsibility – no its not Spiderman – and coldly rational human being said this,

And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.

It also was not Judge Sonia Sotomayor, it was Supreme Court Justice and Bush appointee Sam Alito. Which brings us to conservative columnist David Brooks at the NYT and at this point in history, deep thoughts from the Stuart Smalley School, into empathy and rationalism. The Empathy Issue

Third, is she aware of the murky, flawed and semiprimitive nature of her own decision-making, and has she accounted for her own uncertainty? If we were logical creatures in a logical world, judges could create sweeping abstractions and then rigorously apply them. But because we’re emotional creatures in an idiosyncratic world, it’s prudent to have judges who are cautious, incrementalist and minimalist. It’s prudent to have judges who decide cases narrowly, who emphasize the specific context of each case, who value gradual change, small steps and modest self-restraint(emphasis mine).

Brooks sudden concern couldn’t be a coincidence since Supreme Court nominees Sotomayor made a speech in which she implied that empathy has played a role in many SCOTUS decisions and those of lower courts. In this column of 2006 Brooks sounding a lot like a less rabid version of the Catholic League’s Bill Donohue,

In 1971, Fred Dutton, an important Democratic strategist, acknowledged the rift between educated liberals and the white working class. In a short book, “Changing Sources of Power,” Dutton argued that white workers had “tended, in fact, to become a major redoubt of traditional Americanism and of the antinegro, antiyouth vote.”

The New Deal coalition, including Catholics and white ethnics, was dying, he argued, and should be replaced by a “loose peace coalition” of young people, educated suburbanites, feminists and blacks.

That plan wasn’t stupid, but it didn’t work. The party has been in a downward spiral ever since.

Besides the obviously cracked crystal ball, Brooks failed to mention that the Judiciary Committee that confirmed Alito had three Democrats who were Catholics – Patrick Leahy, Ted Kennedy, and Richard Durbin. We know that Brooks either did not do his fact checking – why would a Republican pundit taking up a large piece of media real estate as a Time’s columnist with a six figure salary bother with facts that might interfere with his thesis about Democrats losing touch with the Catholic working class – so why would we be surprised to find that Brooks also ignored Alito’s Senate confirmation remarks which drips with empathy. He should have heard them or heard about them. There are multiple choices for Brooks. A convenient loss of memory. A conscious or unconscious double standard – it never entered his mind that a male, and a Republican one at that, might get all compassionate over an immigration or discrimination case. Thus Brooks simply writes or more accurately pretentiously assumes Alito is incapable of letting his emotions get the best of him,

Finally, and most important, there is the question of demeanor. Alito is a paragon of the old-fashioned working-class ethic. In a culture of self-aggrandizement, Alito is modest. In a culture of self-exposure, Alito is reticent. In a culture of made-for-TV sentimentalism, Alito refuses to emote. In a culture that celebrates the rebel, or the fashionable pseudorebel, Alito respects tradition, order and authority.

What sort of party doesn’t admire these virtues in a judge?(emphasis mine)

All Democrats of course, the party of Constitutional architect Thomas Jefferson, are known for their high propensity for anarchy. As civil as Brooks current Empathy sounds on the surface, it reeks of pretentious assumptions about our legal system, minorities and women. We’ve already been informed by Bertrand Russell and Albert Einstein that the completely rational person does not exist; Brooks does not just drag out some worn truisms, he tries to buy in as part owner. Two years ago he was Mister Order and Authority. He has a right to be, as I do,  compassionate while also having a desire for order and  boundaries on behavior, but for Brooks they all seem to be cards in a deck in which he shuffles the card he needs to the top of the deck. Context means a lot and its easy to take lines from this speech to create a distorted picture of what Sotomayor meant.

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.
However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

She admits that she comes fully equipped with a healthy human psyche and the intellect to wrestle with a human’s natural impulses toward some bias. Or put another way, she is not an unfeeling robot or a sociopath.

time travel

Harvard MBAs Debut Oath for the Most Dishonest Profession

On Friday, the New York Times profiled a group of Harvard Business School students who have taken an “MBA oath” to act responsibly and “serve the greater good.” The ethical pledge of “responsible value creation” can’t come too soon for America’s future business leaders. After all, a February 2009 Marist poll found that in the wake of the nation’s financial meltdown, a majority of Americans give corporate leaders a D or F for their honesty and ethical conduct. And as it turns out, a 2006 Duke University study revealed more MBA students cheat than those pursuing other professions.

That study of 5,300 students at 54 institutions by the Center for Academic Integrity at Duke found that 56% of MBA seekers acknowledged cheating, more than those in fields such as education (48%), social sciences (39%) or even law (45%). Contrary to Republican mythology, apparently it is the country’s CEOs and managers and not its lawyers Americans should trust least

The average American thinks of the major threat to their safety, savings and general well being as a thug from a line up they see on a crime drama or a smug shot from the evening news. MBAs with corner offices and a copy of Excel are probably a bigger threat. They can ruin your life all at once or they can operate in stealth mode leeching off your labor for years. Its a strange cultural struggle in which everyone wants more police protection to deal with the statistically lower threat from the street thug, but fight regulation, frequently portrayed as unpatriotic, to protect us from the thugs in the two thousand dollar suits.