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KahlilWilliamsThirdPaper 5 - 13 Jul 2009 - Main.KahlilWilliams
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A Pathetic Reading of Empathy | | |
What President Obama Said | |
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< | In referencing the Lilly Ledbetter pay discrimination case, Obama stated that empathy was an "essential ingredient from arriving at just outcomes and decisions. Not surprisingly, his comment triggered a number of responses, mostly from conservatives and “textualists”, that empathy has no place in judging. Instead, these critics cited the well-worn metaphor of judges as umpires—disinterested parties who adhere to clear, rigid rules—as the paragon of legal arbiters. Of course, the metaphor unravels quickly when you ask someone to point to the MLB rule that describes the strike zone (hint: It doesn’t exist.) | >
> | In referencing the Lilly Ledbetter pay discrimination case, Obama stated that empathy was an "essential ingredient from arriving at just outcomes and decisions. Not surprisingly, his comment triggered a number of responses, mostly from conservatives and “textualists”, that empathy has no place in judging. Instead, these critics cited the well-worn metaphor of judges as umpires—disinterested parties who adhere to clear, rigid rules—as the paragon of legal arbiters. Of course, the metaphor unravels quickly when you ask someone to point to the MLB rule that describes the strike zone (hint: It doesn’t exist.) | | | Amid these clichéd analyses of judicial qualifications, I stumbled upon Stanley Fish’srecent piece in the New York Times, which discusses Obama’s “invocations of empathy”. While the overall message of the piece was both clear and predictable (precedent and established legal principles=good; decisions based on outcomes=bad), I was struck by two aspects of the piece. First, Fish invoked Felix Cohen’s Transcedental Nonsense, which was pretty cool, but unexpected for an op-ed piece in 2009. Second, and more importantly, Fish completely bastardized the theory underlying Cohen’s piece, in the hopes of drawing a connection between Cohen’s view of law and Obama’s. |
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