John Stewart had some fun the other night mocking conservative politicians and talking heads for criticizing Obama’s desire for an “empathetic” Supreme Court justice, who will make legal decisions, in part, by “identifying with people’s hopes and struggles.”
|The Daily Show With Jon Stewart||M – Th 11p / 10c|
|Justice Is Bland|
First of all, I can’t imagine this is good politics – do voters really want a party that brags of their callousness? I know empathy is a code word for “activist judges,” but it’s still a noun with the following definition: “the ability to understand and share the feelings of another.” Not such a terrible thing, even for a judge.
I also think the conservative argument fails on psychological grounds. After all, the absence of empathy isn’t great jurisprudence: it’s psychopathy. Here’s how I put it in my book:
What causes psychopathy? On most psychological tests, psychopaths appear perfectly normal. Their working memory isn’t impaired, they use language normally, and they don’t have reduced attention spans. In fact, several studies have found that psychopaths have above average IQ’s and reasoning abilities. Their logic is impeccable. But this intact intelligence conceals a devastating disorder: psychopaths are dangerous because they have a damaged emotional brain.
When normal people are shown staged videos of strangers being subjected to pain⎯like a powerful electrical shock⎯they automatically generate a visceral emotional reaction. Their hands start to sweat and their blood pressure surges – they are automatically sympathizing with the suffering. But psychopaths feel nothing. It’s as if they were watching a blank screen. Most people react differently to emotionally charged verbs like kill or rape than to neutral words like sit or walk, but not psychopaths. The words all seem equivalent. When criminologists looked at the most violent wife batterers, they discovered that, as the men became more and more aggressive, their blood pressure and pulse actually dropped. The acts of violence had a calming effect.
When you peer inside the psychopathic brain, you can literally see this absence of emotion. After being exposed to fearful facial expressions, the emotional parts of the normal human brain show increased levels of activation. So do the cortical areas responsible for recognizing faces. As a result, a frightened face becomes a frightening sight; we naturally internalize the feelings of others. The brains of psychopaths, however, respond to these fearful faces with utter disinterest. Their emotional areas are unperturbed, and their facial recognition system is even less interested in fearful faces than in perfectly blank stares.
The problem of psychopaths, and the fact that they’re more likely to commit acts of instrumental violence, teaches us something interesting about decision-making in moral, legal and ethical situations: these difficult, value-laden decisions require sympathy. We abhor violence because we know violence hurts. We treat others fairly because we know what it feels like to be treated unfairly. We reject suffering because we can imagine what it’s like to suffer. Our minds naturally bind us together.
Adam Smith, the 18th century philosopher, was there first. Although Smith is best known for his economic treatise The Wealth of Nations, he was most proud of The Theory of Moral Sentiments, his sprawling investigation into the psychology of morality. Like his friend David Hume, Smith was convinced that our moral decisions were shaped by our emotional instincts. We were good for essentially irrational reasons.
According to Smith, the source of these moral emotions was the imagination, which we used to automatically mirror the minds of others. (The reflective mirror, which had recently become a popular household item, is an important metaphor in Smith’s writing on morality.) “As we have no immediate experience of what other men feel,” Smith wrote, “we can form no idea of the manner in which they are affected, but by conceiving what we ourselves should feel in the like situation.” This mirroring process leads to an instinctive sympathy for our fellow man⎯Smith called it “fellow-feeling”⎯which formed the basis for our moral, legal and ethical decisions.
In other words, we banish empathy as a requirement for our judges at our own peril. Our moral decisions are fundamentally emotional decisions, which are rooted in the ability to imagine what someone else is feeling.