As the recent nomination to the Supreme Court has drawn so much attention, I was reluctant to write on the topic. After all, the subject has been covered at length. I even wrote on the problem of empathy in more general terms in ""Empathy" Threatens not "Justice" but Predictability". However, after reading all the posts on the nominee, I have noticed one problem, everyone is still arguing about empathy being "unjust" or "unfair" and I have yet to see anyone mention the two biggest problems, the logical impossibility of anticipating decisions based on "empathy" rather than law, and, more importantly, the practical impact of this uncertainty on society, especially if it comes to dominate courts at all levels.

Yes, judging based on "empathy" is unfair, unjust and everything else that the critics have brought up, but as both Republicans and Democrats have bought into the unworkable theory of pragmatism (see "The Shortcomings of Pragmatism" and "Pragmatism Revisited"), that argument no longer seems to carry much weight. The Republicans especially have been guilty recently of sacrificing their principles in the name of "compassion" or just "what works"¹. How else to explain a small government party that voted for Bush's TARP or his prescription bill? So, as politicians have given up on principle, I don't see how a principled argument will win.

Fortunately, there is an argument from practicality that exists. And, though I detest pragmatism, I can also bow to reality, and so I offer an argument that will sway pragmatists as well as principled politicians, if any remain.

First, and most importantly, there is simply no way to predict empathy. Granted, Sotomayor seems to be operating on the standard liberal scale of wealth, race, sex and sexual orientation, so Hispanics win over whites, rich lose to poor, and so on. But that may not be all she uses. What if she still takes into account the law to some degree? Or personal empathy not based on those aspects? How can we determine to what degree the various factors will come into play? What if a clearly guilty gay Puerto Rican woman who is quite charming is the subject of a case? Will the law win out or the combo of race, poverty, sexual orientation and sex, combined with personal fondness? There is simply no way to know. Even if we limit empathy to her categories, we still have problems. In a case between a Hispanic rich woman and a poor black disabled man, who is the more empathetic? Who will win? Empathy introduces a certain randomness into decisions.

And that randomness leads to our second problem, unpredictability. I have written on this at great length, even mentioning how it would harm liability law in my post "Predictability", but let me give two examples here.

First, let us suppose you have an appeal coming before the supreme court. If you win, you will be able to stay in business, if you lose, you will be bankrupted. You are a Hispanic man, but the other party is Indian (as in "native American", not "from India"²). Then we have the lawyers, you have hired another Hispanic, but a noted gay woman. The other side has hired a disabled black woman³. Looking at the situation, you just cannot predict who will be more empathetic. As you entire livelihood hangs in the balance, wouldn't you be more likely to settle, rather than roll the dice? Even if the law is entirely in your favor, you still have to wonder about the "empathy" card. After all, you own a  business, making you a hated exploiter. Even if you are a minority, so is the plaintiff. So odds are good you will lose. And so, despite complying with the law, you will likely settle. Worse, this will encourage just such nuisance suits from "empathetic" plaintiffs, as they have an advantage in pressing such suits, even when the law is against them⁴.

Second, as the tenor of the Supreme Court tends to set the tone for state appellate courts, and they set the tone for trial and civil courts, it is not inconceivable that this "empathy" could spread to all levels of the judiciary. however, far from making a court system which is more "caring" it would create one which could create the most undesirable results. Think of the criminal justice system. Just as every American Idol contestant has a sob story to win voter sympathy, our courts would be filled with criminals trying to appear "oppressed" ⁵ to win an acquittal. At the same time, innocent men charged with crimes where empathy cuts against them, say a white wealth man charged with killing a destitute black transvestite, might be tempted to plead out despite their innocence, as empathy cuts against them. In short, empathy, when applied as a principle of justice, results in cases where what you did does not matter as much as who you are.

Strangely, what this "empathy" concept threatens to do is create the very system the liberals claim to detest, though in an inverted form. The left claims that now our court system "favors the rich and privileged". However, their solution is not to make an impartial system (which is what I claim we now have, in general), but to simply invert it so it favors the poor, minorities and women. Does that make sense? Did the left not learn "two wrongs don't make a right"?

Int he end, what will happen instead is a massive backlash. Just as affirmative action resulted in the rebirth of once nearly dead racism, I predict that an "empathetic" court system which openly favors certain groups will result in a general antipathy toward those groups.And so, as always, rather than helping to "heal the racial divide", this sort of favoritism will end up creating racial antipathy where previously it was weak or nonexistent. And, in the process, destroy both our judiciary and our economy.

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1. For some examples of the Republicans past tendency to adopt "pragmatic" solutions, as well as the current push to move the party even farther to the left, read the following: What We Deserve, Misplaced Blame and A Power Play, Et Tu, Town Hall?, Inescapable Logic, Smaller Government , Fair Weather Friends and Special Cases, Conservatives and the "Big Picture", "Fair Trade", Activism As The Only Acceptable Position?, When Did We Become Liberals?, Winning By Losing? Not A Chance!, Need to Change Direction?

2. My regular readers are familiar with my complaints with "African American" and "Native American" and "First Nations" and the rest of the PC lexicon. For those not familiar with my arguments, please read the following: Badly Chosen PC Words, Yet Another Misleading PC Name, Artistic Integrity?, A Question About Language, Predictions Come True Yet Again,The Power of Words, or, Please Don't Take Offense

3. This is one interesting aspect of "empathy". As the decisions will no longer be based as much on the law, I predict that the market for lawyers from preferred groups will rise, if only to increase the perceived "empathy" of the party. I grant that many rapists already try this when they hire female attorneys, who seem less mean when trying to tear apart the female accuser, but that is an unusual case. This emphasis on "empathy" will make it a general practice in courts where "empathy" is the rule.

4. Read about the California ADA compliance suits here, here and here. This is just a hint of what an empathy based court system will bring. And before anyone argues "but at least the disabled will be better off", note that the ADA has caused a decline in employment of the disabled (here and here). Not surprisingly, the similar lead paint regulations have not resulted in more lead free toys, but instead simply removed used toys from the market, while keeping everything else the same. It is the same sort of unintended consequence I described in "When Help Hurts " and "Counter Productive".

5. As some court systems already do place excessive emphasis on "empathy", we have some idea of what the results will be. For instance, Baltimore tends to imprison for much shorter times, plead out to non-jailable offenses, and refuses to use the death penalty. And comparing Baltimore City to neighboring, and more hard-line, Baltimore county, we can see that this "empathetic" approach results in a city with one of the highest per-capita murder rates in the nation, with declining population, shrinking tax base, open air drug markets and out of control crime. Neighboring Washington DC, with the same policies, had the same results. Now some will argue this is just an "urban problem" and not the result of soft on crime policies. If so, then why do cities which enforce the laws, such as many in Texas, fail to have the problems of Washington, Baltimore, Detroit, even Berkley? In fact, why does "blue state", or more properly "blue city" so often correlate with "uncontrolled crime"?

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POSTSCRIPT

I wrote previously about how racial favoritism creates the very antipathies it claims to cure in "Mainstreaming hate", "How Democrats Keep the Poor Poor", "Pseudo-Homophobes and Silent Assent" and  "Modern Marius and Sulla". In addition, I wrote about the racial identity movement in general and how it actually harms the groups who develop racial "pride" in my post "The Important Lesson of Racism". I also discuss the apparent condescending, even racist attitudes, of liberalism in "The Racism of the Left", "More Harm From Multiculturalism", "Tolerance? Really?" and "Eurocentrism? Racism? Liberal Traits All". And, finally, list of posts covering my general criticism of liberalism's views of man, and minorities in particular, can be found in the postscript to "Cognitive Dissonance Part 2".

I also wrote in "Fairness and the Free Market" and "Planning For Imperfection" that the only fair system is one which embraces the free market, which, I explain in "My Vision of Government" and "My Vision of Government Part II", requires a minimal government to operate properly. Under such a system there may still be some racist individuals, as I mention in "Private Versus Public Racism" and "The Power of Words, or, Please Don't Take Offense", but as the government plays such a small role, as described in "", there is no need for the sort of "war of all against all" that racial preferences create. See also "Special Cases", "Transparency, Corruption and Reform" and "Modern Marius and Sulla". And, for those who don't mind my periodic forays into mixing theology and politics, "The Triumph of Good". I promise it has enough politics to interest even those who have no stomach for theology.

POSTSCRIPT II

One interesting consequence of this new emphasis on "empathy, should it become more common and degenerate into a euphemism for "identity politics", is that private companies may adopt a practice form government contractors. Having worked for several, I know many government contractors are "owned" by different people than the owners. Let me explain. Three or four rich white men may own the company, a sin collect all the profits and control all the assets. But on paper, a minority, often a female, sometimes disabled, "owns" the company, holding 55% of stock, though hedged in with enough contractual obligations that that "ownership" amounts to little more than picking up a check for being a minority. But, in the government world of racial set-asides, this means the company is a "minority contractor" and can now bid on those contracts accepting only minority bids.

And, if "empathy" comes to mean "minority favoritism" in the law, I could see private companies doing the same, if only to be able to walk into court as a "minority owned business" and thus offset any advantage a minority plaintiff might have.

On the other hand, as race may also play a role in criminal law, I could see a sharp decline in the number of white police officers. We have already seen this in cities where minority activists too ardently attack the police force, or are given too much credence by the local government, but if "empathy" (as racial preference) comes to criminal law universally, I could see a situation where white officers, seeing their testimony routinely dismissed, while any complaint against them is given great weight, would find they prefer other work.  Of course, as whites are the one group about which politicians are unconcerned if it is "underrepresented", this is likely not a worry for politicians pushing for more "empathy", but it will be interesting to see the eventual "discrimination" suits brought by the remaining white officers, charging that the lack of white officers shows a clear bias.

Of course, all such worries are far in the future, years at the least. And they assume "empathy" gains more traction than it has, expanding beyond some academics, one SC justice, and criminal courts in liberal dominated cities. But if it does, it represents a very real threat to the stability of many, perhaps all, of our institutions. For now, however, it is just one more step in destroying the predictability of our laws, one more step int he slow decline of our economy.