Brooks supports Sotomayor’s emotion based approach to judging

In response to the Sotomayor nomination, David Brooks, that unspeakable intellectual whore, whom many brainless conservatives still regard as a conservative, is now endorsing something like critical legal theory. I read the first two paragraphs of this and got so angry I stopped. Eventually I’ll force myself to read the rest of it, but not now.

The Empathy Issue
By DAVID BROOKS
Published: May 28, 2009

The American legal system is based on a useful falsehood. It’s based on the falsehood that this is a nation of laws, not men; that in rendering decisions, disembodied, objective judges are able to put aside emotion and unruly passion and issue opinions on the basis of pure reason.

Skip to next paragraph

Most people know this is untrue. In reality, decisions are made by imperfect minds in ambiguous circumstances. It is incoherent to say that a judge should base an opinion on reason and not emotion because emotions are an inherent part of decision-making. Emotions are the processes we use to assign value to different possibilities. Emotions move us toward things and ideas that produce pleasure and away from things and ideas that produce pain.

People without emotions cannot make sensible decisions because they don’t know how much anything is worth. People without social emotions like empathy are not objective decision-makers. They are sociopaths who sometimes end up on death row.

Supreme Court justices, like all of us, are emotional intuitionists. They begin their decision-making processes with certain models in their heads. These are models of how the world works and should work, which have been idiosyncratically ingrained by genes, culture, education, parents and events. These models shape the way judges perceive the world.

As Dan Kahan of Yale Law School has pointed out, many disputes come about because two judges look at the same situation and they have different perceptions about what the most consequential facts are. One judge, with one set of internal models, may look at a case and perceive that the humiliation suffered by a 13-year-old girl during a strip search in a school or airport is the most consequential fact of the case. Another judge, with another set of internal models, may perceive that the security of the school or airport is the most consequential fact. People elevate and savor facts that conform to their pre-existing sensitivities.

The decision-making process gets even murkier once the judge has absorbed the disparate facts of a case. When noodling over some issue—whether it’s a legal case, an essay, a math problem or a marketing strategy—people go foraging about for a unifying solution. This is not a hyper-rational, orderly process of the sort a computer might undertake. It’s a meandering, largely unconscious process of trial and error.

The mind tries on different solutions to see if they fit. Ideas and insights bubble up from some hidden layer of intuitions and heuristics. Sometimes you feel yourself getting closer to a conclusion, and sometimes you feel yourself getting farther away. The emotions serve as guidance signals, like from a GPS, as you feel your way toward a solution.

Then—often while you’re in the shower or after a night’s sleep—the answer comes to you. You experience a fantastic rush of pleasure that feels like a million tiny magnets suddenly clicking into alignment.

Now your conclusion is articulate in your consciousness. You can edit it or reject it. You can go out and find precedents and principles to buttress it. But the way you get there was not a cool, rational process. It was complex, unconscious and emotional.

The crucial question in evaluating a potential Supreme Court justice, therefore, is not whether she relies on empathy or emotion, but how she does so. First, can she process multiple streams of emotion? Reason is weak and emotions are strong, but emotions can be balanced off each other. Sonia Sotomayor will be a good justice if she can empathize with the many types of people and actions involved in a case, but a bad justice if she can only empathize with one type, one ethnic group or one social class.

Second, does she have a love for the institutions of the law themselves? For some lawyers, the law is not only a bunch of statutes but a code of chivalry. The good judges seem to derive a profound emotional satisfaction from the faithful execution of time-tested precedents and traditions.

Third, is she aware of the murky, flawed and semiprimitive nature of her own decision-making, and has she accounted for her own uncertainty? If we were logical creatures in a logical world, judges could create sweeping abstractions and then rigorously apply them. But because we’re emotional creatures in an idiosyncratic world, it’s prudent to have judges who are cautious, incrementalist and minimalist. It’s prudent to have judges who decide cases narrowly, who emphasize the specific context of each case, who value gradual change, small steps and modest self-restraint.

Right-leaning thinkers from Edmund Burke to Friedrich Hayek understood that emotion is prone to overshadow reason. They understood that emotion can be a wise guide in some circumstances and a dangerous deceiver in others. It’s not whether judges rely on emotion and empathy, it’s how they educate their sentiments within the discipline of manners and morals, tradition and practice.

[end of Brooks column]

- end of initial entry -

Mark P. writes:

This is fascinating. Never have I seen such a naked attack against white people and their system of law.

Aside from that, doesn’t Brooks (and the law professor quoted) realize that this “emotions” argument undermines any technical basis to law? After all, everyone has emotions. Anyone can make decisions based on their feelings. People do this all of the time. Why, then, should the practice of judging be limited to lawyers? Why should judges at the Federal level enjoy the privilege of lifetime tenure? Wouldn’t it make more sense to turn the Federal judiciary into an elected position with term limits to get the full range of emotional aappeals into the courts?

LA replies:

I became extremely angry a couple of days ago when a friend read the first two paragraphs of the Brooks column to me on the phone. I realize I need to read it, I just don’t want to, yet.

A. Zarkov writes:

Recently Pravda published an essay on the demise of American capitalism where the author made the following remark.

First , the [American] population was dumbed down through a politicized and substandard education system based on pop culture, rather then the classics. Americans know more about their favorite TV dramas then the drama in DC that directly affects their lives.

This certainly seems to describe David Brooks and his New York Times columns, as he is evidently ignorant of the history and operation of the Anglo-American system of jurisprudence. Not only is he ignorant, he seems to wallow in his ignorance like a pig in manure. Let’s take a look at a few of the assertions in his recent column, The Empathy Issue. Brooks writes.

It is incoherent to say that a judge should base an opinion on reason and not emotion because emotions are an inherent part of decision-making.

What? The whole historical thrust of Anglo-American jurisprudence has been away from emotion and towards reason. Before the 1700s juries consisted of accusers, witnesses and others with a vested interest in the outcome of the jury trial. Thus the victim of a crime could and usually was a member of the jury (see Holdsworth, A History of English Law, Vol. 1, 1903). Needless to say those accused of crimes did their best to avoid trial by jury as they were likely to be judged on an emotional basis. Wells, (Law Quarterly Review, 117:97-110, 1914) in an account of early opposition to trial by jury writes:

Men confronted by a jury trial stood mute in antagonistic silence refusing in dogged obstinacy to even speak when confronted with this means of proving their innocence, which was too often a method of heaping up against them the slanders, the malicious gossip, the misconceptions and ill-will of the envious, and the condemnation of self-righteous neighbors.

To temper the abuses of the jury system, Edward III enacted a statute in 1352 that allowed an accused to challenge the suitability of an juror who joined in his indictment. Nevertheless juries could still be punished for reaching a verdict contrary to the wishes of the King. But in 1670, Chief Justice John Vaughn in the trial of Edward Bushell. Bushell was on trial for reaching the wrong verdict as a member of the jury in another trial. Vaughn’s landmark ruling established the independence of juries and separated conclusions of law (judges do this) and findings of fact (a jury function). It still took a long time to craft our current system that strives for objectivity and substitutes reasoning for emotion.

Let’s do another Brooks assertion.

Emotions are the processes we use to assign value to different possibilities.

No David we use our critical reasoning (which you evidently lack) to make value judgments. Would you like your doctor to use his emotions when diagnosing your ilness?

Here’s another.

People without emotions cannot make sensible decisions because they don’t know how much anything is worth. People without social emotions like empathy are not objective decision-makers. They are sociopaths who sometimes end up on death row.

No David you are confusing consience with emotions. Sociopaths don’t lack emotions—they lack a consience. They lack the capacity to make moral choices.

I can’t stand it any more. I have to stop as this is too painful for me to continue. This man is a complete moron. I try to stay away from personal insults and remain clinical and detached, but David Brooks is just too much. It’s truly frightening that this man writes a regular column for a major newspaper.

Alan Levine writes:

I share your disgust with Brooks. He has sunk even beneath his usual level.

I earnestly hope I never have to drive over a bridge or fly in a plane designed according to someone’s emotional intuition.

Apart from the minor considerations that emotional intuitions are not supposed to be, and until recently have not been, the force dictating legal decisions, Brooks seems to disregard the point that the theory he endorses completely shreds any argument that the judiciary is entitled to exercise any power at all, much less the perks these robed shysters get. If all that is needed is emotional intuition, anyone’s judgment is as good as, if not better, than someone who has been brainwashed in a law school into accepting (just for example) such absurdities as that the American constitution was not understood until Earl Warren and Warren Burger came down from Olympus.

Come to think of it, didn’t Southern lynch parties operate on the basis of “emotional intuition?”

Posted by Lawrence Auster at June 02, 2009 11:17 AM | Send