The Empathy Code: Judging, Judgment, and the Next Supreme Court Justice

Sarah Seltzer

Pro-reproductive justice philosophy is grounded in empathy -- the idea that we cannot judge another woman's choice unless we've walked a mile in her shoes.

Supreme Court nomination season is more rife with code words and
hidden references than a Dan Brown novel. "Strict constructionists"
and "activists judges" are just some of the most commonly used
double-entendres in circulation.

But perhaps the most unexpectedly buzzed-about word in recent weeks is "empathy." In his first remarks on the retirement of Justice David Souter, President Obama said:

"I will seek somebody with a sharp and independent mind and a record
of excellence and integrity…someone who understands that
justice isn’t about some abstract legal theory or footnote in a case
book.  It is also about how our laws affect the daily realities of
people’s lives — whether they can make a living and care for their
families; whether they feel safe in their homes and welcome in their
own nation.

I view that quality of empathy, of understanding and identifying with
people’s hopes and struggles as an essential ingredient for arriving as
just decisions and outcomes.  I will seek somebody who is dedicated to
the rule of law, who honors our constitutional traditions, who respects
the integrity of the judicial process and the appropriate limits of the
judicial role.  I will seek somebody who shares my respect for
constitutional values on which this nation was founded, and who brings
a thoughtful understanding of how to apply them in our time.

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According to conservative pundits, empathy is not a word meaning "understanding, being aware of,
being sensitive to, and vicariously experiencing the feelings, thoughts, and
experience of another…" but instead a coded dog whistle to his
pro-choice, pro-gay rights base.

Of course, it wasn’t actually a dog whistle of any sort, because Obama used the
oft-echoed word in a speech to Planned
–no secret connotations there. Explaining why he voted against
confirming Justice Roberts, here’s
what Obama said

Justice Roberts said he saw himself just as an umpire, but the issues
that come before the Court are not sport, they’re life and death. And we need
somebody who’s got the heart-the empathy-to recognize what it’s like to be a
young teenage mom. The empathy to understand what it’s like to be poor or
African-American or gay or disabled or old-and that’s the criteria by which
I’ll be selecting my judges. Alright?

As Wonkette
reported in typically NSFW/hilarious language
, "empathy" more
than any other word sent a flock of right-wingers into fits of rage. Alabama
Senator Jeff Sessions said he "didn’t understand" empathy and he
assumed it meant personal predilections–while National Review writer Thomas
Sowell wrote that Obama’s use of the word led down a
slippery slope to… Hitler-esque fascism. Literally.

Right, because Hitler had too much
for the non-Aryans in Europe. That
was his problem.

Finally, to cap the trifecta of empathy-naysayers, GOP party chairman Michael
Steele ranted:

I don’t need some judge sitting up there feeling bad for my opponent
because of their life circumstances or their condition. And short changing me
and my opportunity to get fair treatment under the law. Crazy nonsense
empathetic. I’ll give you empathy. Empathize right on your behind. Craziness.

What’s most amusing about all these reactions is each critic has implied that
the hypothetical empathetic justice would rule against his interests, rather than empathize with him.  It’s my guess that should Sessions, Sowell or
Steele actually ever find themselves before a judge, they would hope the judge
possessed empathy in heaps, seeing the parties involved as human beings with
real stakes rather than merely players in a legal game.

From a linguistic and humanistic perspective, this word-bashing party is a real
pity, because "empathy" has one of the nicest definitions in the
English language. It’s not the condescension-laced "sympathy." No,
empathy means transcending our basic human selfishness, our limited
perspective, and seeing the world through others’ eyes to the very extent of
our capacity. To approach social problems with a truly empathetic outlook is
vital–and to approach our neighbors, relatives and colleagues from a place of
empathy is arguably even harder. Like Lady Macbeth scorning the "milk of
human kindness," then, this group of empathy-haters is turning one of our
most remarkable emotional capabilities into a negative.

But it’s hard to blame these detractors alone for the fears stoked up by the President’s
use of the word. Empathy as a value scares social conservatives because it
contradicts their current philosophy, particularly when it comes to the kind of
civil rights and reproductive rights issues that are decided in court.

Indeed, empathy should scare them. On
our end, the pro-choice, pro-reproductive justice philosophy is grounded in
empathy–the idea that we cannot judge another woman or person’s choice unless
we’ve walked a mile in her shoes. And even if we have.  It’s the inherent belief that we can’t
extrapolate the law or the rules from one person’s experience. The reproductive
justice movement is full of women who have chosen to carry a pregnancy to term
fighting for the right for others to have access to abortion and vice-versa,
women who underwent hospital births advocating acceptance for home births,
women in different types of romantic and family relationships advocating for
each other, and infinite other permutations.

The anti-choice movement has the opposite approach, a product of a massive
failure of imagination and a lack of empathy.  It’s the belief that one person’s
experience should apply to all: "I
regretted my abortion, so abortion should be illegal." "My teenage
daughter gave birth so all teen pregnancies should end that way." "I
disapprove of premarital sex, so safe sex education should be banned from
." Or occasionally, "my
reasons for having an abortion are legitimate, but she’s just a slut!

One person notably chafing against this complete inability to escape such a
limited worldview is Republican scion Meghan McCain, who
eviscerated her party’s approach to birth control in the Daily Beast last week
. While affirming that she is
"pro-life," McCain wrote that the Republican Party’s inability to
talk about things it deemed "immoral" renders it irrelevant:

Not everyone
shares the same beliefs, and more importantly, people don’t always react the
same way to their circumstances. Which is why it is so important to encourage
honest, open communication about the realities of sex within the party at
large, and more specifically, between parents and their children.

While McCain writes about a narrow issue, her
acknowledgement that different people
think and react differently
to the same situation shows a fledgling
understanding of, dare we say it, the kind of empathetic principles that are
sorely lacking in her party. She should be commended for providing reasonable
voice on the subject.

But here’s the problem. If we follow McCain’s burgeoning philosophy–each
person is different, and not all standards of sexual morality are universal or
objective–to its logical conclusion, it would lead a lot further. It might
lead all the way to a government and legal system that didn’t use outdated
mores to judge real-life cases.  It might lead to a pro-reproductive
justice, pro-gay marriage, pro civil-rights for all vision, and possibly even

Social conservatives know that injecting little bit of empathy into the public
discourse could go a long way towards changing the social hierarchies to which
reactionaries desperately cling.  So they have a major reason to be scared. But
the rest of us should be celebrating Obama’s use of a word that affirms our
better selves, and looking for a Supreme Court justice and other members of our
government that live up to the less-tangible, but no less important, standards
"empathy" represents.

News Human Rights

Feds Prep for Second Mass Deportation of Asylum Seekers in Three Months

Tina Vasquez

Those asylum seekers include Mahbubur Rahman, the leader of #FreedomGiving, the nationwide hunger strike that spanned nine detention centers last year and ended when an Alabama judge ordered one of the hunger strikers to be force fed.

The Department of Homeland Security (DHS), for the second time in three months, will conduct a mass deportation of at least four dozen South Asian asylum seekers.

Those asylum seekers include Mahbubur Rahman, the leader of #FreedomGiving, the nationwide hunger strike that spanned nine detention centers last year and ended when an Alabama judge ordered one of the hunger strikers to be force-fed.

Rahman’s case is moving quickly. The asylum seeker had an emergency stay pending with the immigration appeals court, but on Monday morning, Fahd Ahmed, executive director of Desis Rising Up and Moving (DRUM), a New York-based organization of youth and low-wage South Asian immigrant workers, told Rewire that an Immigration and Customs Enforcement (ICE) officer called Rahman’s attorney saying Rahman would be deported within 48 hours. As of 4 p.m. Monday, Rahman’s attorney told Ahmed that Rahman was on a plane to be deported.

As of Monday afternoon, Rahman’s emergency stay was granted while his appeal was still pending, which meant he wouldn’t be deported until the appeal decision. Ahmed told Rewire earlier Monday that an appeal decision could come at any moment, and concerns about the process, and Rahman’s case, remain.

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An online petition was created in hopes of saving Rahman from deportation.

ICE has yet to confirm that a mass deportation of South Asian asylum seekers is set to take place this week. Katherine Weathers, a visitor volunteer with the Etowah Visitation Project, an organization that enables community members to visit with men in detention at the Etowah County Detention Center in Gadsden, Alabama, told Rewire that last week eight South Asian men were moved from Etowah to Louisiana, the same transfer route made in April when 85 mostly Muslim South Asian asylum seekers were deported.

One of the men in detention told Weathers that an ICE officer said to him a “mass deportation was being arranged.” The South Asian asylum seeker who contacted Weathers lived in the United States for more than 20 years before being detained. He said he would call her Monday morning if he wasn’t transferred out of Etowah for deportation. He never called.

In the weeks following the mass deportation in April, it was alleged by the deported South Asian migrants that ICE forcefully placed them in “body bags” and that officers shocked them with Tasers. DRUM has been in touch with some of the Bangladeshis who were deported. Ahmed said many returned to Bangladesh, but there were others who remain in hiding.

“There are a few of them [who were deported] who despite being in Bangladesh for three months, have not returned to their homes because their homes keep getting visited by police or intelligence,” Ahmed said.

The Bangladeshi men escaped to the United States because of their affiliations and activities with the Bangladesh Nationalist Party (BNP), the opposition party in Bangladesh, as Rewire reported in April. Being affiliated with this party, advocates said, has made them targets of the Bangladesh Awami League, the country’s governing party.

DHS last year adopted the position that BNP, the second largest political party in Bangladesh, is an “undesignated ‘Tier III’ terrorist organization” and that members of the BNP are ineligible for asylum or withholding of removal due to alleged engagement in terrorist activities. It is unclear how many of the estimated four dozen men who will be deported this week are from Bangladesh.

Ahmed said that mass deportations of a particular group are not unusual. When there are many migrants from the same country who are going to be deported, DHS arranges large charter flights. However, South Asian asylum seekers appear to be targeted in a different way. After two years in detention, the four dozen men set to be deported have been denied due process for their asylum requests, according to Ahmed.

“South Asians are coming here and being locked in detention for indefinite periods and the ability for anybody, but especially smaller communities, to win their asylum cases while inside detention is nearly impossible,” Ahmed told Rewire. “South Asians also continue to get the highest bond amounts, from $20,000 to $50,000. All of this prevents them from being able to properly present their asylum cases. The fact that those who have been deported back to Bangladesh are still afraid to go back to their homes proves that they were in the United States because they feared for their safety. They don’t get a chance to properly file their cases while in detention.”

Winning an asylum claim while in detention is rare. Access to legal counsel is limited inside detention centers, which are often in remote, rural areas.

As the Tahirih Justice Center reported, attorneys face “enormous hurdles in representing their clients, such as difficulty communicating regularly, prohibitions on meeting with and accompanying clients to appointments with immigration officials, restrictions on the use of office equipment in client meetings, and other difficulties would not exist if refugees were free to attend meetings in attorneys’ offices.”

“I worry about the situation they’re returning to and how they fear for their lives,” Ahmed said. “They’ve been identified by the government they were trying to escape and because of their participation in the hunger strike, they are believed to have dishonored their country. These men fear for their lives.”

Roundups Law and Policy

Gavel Drop: Republicans Can’t Help But Play Politics With the Judiciary

Jessica Mason Pieklo & Imani Gandy

Republicans have a good grip on the courts and are fighting hard to keep it that way.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts.

Linda Greenhouse has another don’t-miss column in the New York Times on how the GOP outsourced the judicial nomination process to the National Rifle Association.

Meanwhile, Dahlia Lithwick has this smart piece on how we know the U.S. Supreme Court is the biggest election issue this year: The Republicans refuse to talk about it.

The American Academy of Pediatrics is urging doctors to fill in the blanks left by “abstinence-centric” sex education and talk to their young patients about issues including sexual consent and gender identity.

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Good news from Alaska, where the state’s supreme court struck down its parental notification law.

Bad news from Virginia, though, where the supreme court struck down Democratic Gov. Terry McAuliffe’s executive order restoring voting rights to more than 200,000 felons.

Wisconsin Gov. Scott Walker (R) will leave behind one of the most politicized state supreme courts in modern history.

Turns out all those health gadgets and apps leave their users vulnerable to inadvertently disclosing private health data.

Julie Rovner breaks down the strategies anti-choice advocates are considering after their Supreme Court loss in Whole Woman’s Health v. Hellerstedt.   

Finally, Becca Andrews at Mother Jones writes that Texas intends to keep passing abortion restrictions based on junk science, despite its loss in Whole Woman’s Health.