Empathy for the Common Man

One of the president’s stated qualifications for his Supreme Court picks – including Judge Sonia Sotomayor – is that they approach judicial rulings with empathy for the real people whose lives their decisions will affect. The notion owes more to Solomon than to the strict constructionist dogma of the Federalist Society. As others have observed, if interpreting the Constitution were a simple matter of strict textual analysis, we might see fewer five-four decisions (and more disputed babies divided in half).

Common sense and conscience have always had a place in rendering justice. The upcoming confirmation follies will include hand wringing over whether humanity is a substitute for scholarship in deciding what is law.

All too common in Washington, D.C. (and society at large) is the poisonous, near worship of credentials at the expense of common sense. The last administration often substituted ideology for both. Sonia Sotomayor has impressive credentials, but the president’s comments suggest that they were not the be all and end all of his vetting process.

That’s a good thing. In twenty-plus years as a professional engineer, one meets P.E.s who are useless and Ph.D.s who are clueless. With the recent Internet and real estate bubbles, instant wealth conferred in the popular consciousness instant, undeserved credibility. Inside the Beltway, as elsewhere, the media fawn over celebrities and place too much trust in impressive credentials. They are important, but not sufficient. Governor Bush had credentials. As President of the United States, he put a lot of misplaced trust in his famous gut, to the world’s chagrin.

We give mere lip service to the average man any more – in political speeches, in memorials to slain soldiers, and when compelling life stories like Samuel Alito’s, Clarence Thomas’, and now Sonia Sotomayor’s, make Supreme Court justices easier to confirm. Joe the Plumber, on the other hand, made a handy campaign prop. Todd Palin was the butt of jokes, not just because of his politics and his wife’s, but because of his lack of academic bona fides and his blue collar. (Union members, take note.) The common tradesman is reduced to a reality sideshow act, a buffoon performing nightly in the digital coliseum opposite our overstuffed couches.

In “The Case for Working With Your Hands,” Matthew B. Crawford argues for the intrinsic value of work in the trades, of having immediate consequences connected to one’s daily decisions. The manufacturing trades once provided work with tangible results at the end of each day. But manufacturing has largely abandoned these shores, replaced by information workers in office parks, shuffling paper, abstracted from concrete reality. Crawford holds a Ph.D. in political philosophy, yet he traded a Washington think tank job for one repairing motorcycles. He prefers the honesty and the immediate accountability of the latter:

“The visceral experience of failure seems to have been edited out of the career trajectories of gifted students. It stands to reason, then, that those who end up making big decisions that affect all of us don’t seem to have much sense of their own fallibility, and of how badly things can go wrong even with the best of intentions.... [T]hose who sit on the swivel chairs tend to live remote from the consequences of the decisions they make. Why not encourage gifted students to learn a trade, if only in the summers, so that their fingers will be crushed once or twice before they go on to run the country?”

President Obama’s community organizing experiences probably crushed a few of his fingers, imparting a desire for a Supreme Court nominee cognizant of the street-level consequences of her decisions. That’s empathy – considering the real along with the abstract. Dahlia Lithwick writes:

[J]udging requires acts of judgment beyond the mechanical application of law to facts and that it's best for judges to know when the mechanical act of deciding cases gives way to ideology and personal preference. Empathy isn't sloppy sentiment. It's not ideology. It's just a check against the smug certainty that everyone else is sloppy and sentimental while you yourself are a flawless constitutional microcomputer.

Add humility to the list of qualities useful for Supreme Court nominees. Crawford and Lithwick acknowledge the importance of knowing what you don't know and questioning whether – as Crawford describes think tanks – there are some facts you are "more fond of than others."

Common sense and conscience may not be heady enough for either Washington or Wall Street, but they are due for a revival or at least a little more respect. Behold what our trust in credentialed technocrats has wrought. The experts – economic gurus, banking tycoons, captains of industry, pundits, think-tanks, and our legal and political high priests – have brought down the temple around their ears, and ours. Even now they ask, as the Deltas of Faber College asked, that we give them one more chance.

Let's not.

Views expressed on this page are those of the authors and not necessarily those of Campaign for America's Future or Institute for America's Future