One of the many reasons why I love Ellen Goodman

22 05 2009

Ellen Goodman writes op-eds for the Boston Globe.  I have a crush on her because she utilizes a feminist analysis in almost every single piece she writes.  I just stumbled upon her latest op-ed for the Globe, entitled “What’s so bad about empathy?”  This article is specifically about the conservative aversion to a Supreme Court Justice who may just have some empathy.

Even without specific gender references, Goodman still exposes complaints about empathy as absurd.  She writes:

Empathy is rather the ability to imaginatively enter into the experience of others. As Harvard law professor Carol Steiker says, “We think of this as central to moral reasoning of any kind.” How else to understand such moral basics as the Golden Rule?

The capacity to recognize another person’s reality is not just liberal. The conservative jurist Richard Posner has described empathy as an important instrument in a judge’s tool kit. It doesn’t trump reason, it informs reason.

She goes on to explain how Robert Bork got just about no support as a nominee because of his perceived lack of empathy, as well as how Justices such as Alito, Roberts, and Thomas were considered empathetic because of their backgrounds.  These three Justices were, of course, chosen as conservative Justices.  INTERESTING.  And Goodman ends her argument for empathy:

The truth is that we want judges who “get it.” The myth of justice as a matter of pure objective reasoning that could be meted out by a computer is just that, a myth. Check all those 5-4 decisions. Part of “getting it,” says Susan Bandes, author of “Passions of the Law, is “the capacity to know what’s at stake for all the litigants.” In short, empathy.

This is all well and good.  Just with what I’ve presented in this blog post so far, I’d be satisfied with the article.  But Goodman isn’t scared to go there:

So it is that I am watching the run-up to the nomination of a new Supreme Court justice with eyes wide open. We’ve already had preemptive strikes against three women on the media short list. Elena Kagan, Diane Wood, and Sonia Sotomayor are getting the scary radical treatment without even getting picked.

More bizarrely, we have a full-throated campaign targeted against any candidate who might have a deep, dark secret buried in her resume. She may have, gasp, empathy.

Three female potential nominees are getting torn apart because of assumed empathy before they’re even actually nominated.  Three women.  And then, the feminist awesomeness:

Indeed, you might describe the passionate assault as an advance strike on any expected female nominee. Lady Justice notwithstanding, tradition sees the law as hard, rational, and male, while empathy is soft, emotional, female, and generally weepy.

Goodman clearly presents the gendered aspects of law, the Supreme Court, justice, and power: it’s male.  Female nominees (or potential nominees) are automatically suspect because women, as we all know, are going to be totally swayed to make frivolous decisions based on our uteruses, and if you present us with some Constitutional Law, we all cry and then ask the advice column in Cosmo to help.  Or something like that.

Goodman’s article is a very clear example of ways to incorporate feminist analysis into current events.  We notice the ways in which empathy becomes a good or a bad thing (good if you’re male, although it’s not called empathy, and bad if you’re female–law degrees are meaningless), we see that they’re gendered, and we SAY so.

Of course, I completely expect to see plenty of backlash in the comments section.  Boo.  We can only hope that we DO get an empathetic Justice on the bench.  I get the feeling (OH NO, a feeling, I must be a chick) that empathy will do us some good.


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