One of journalist David Brooks’ New York Times columns will serve as segue between the last Mythfire entry and this much belated follow-up:
“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.” *
This is about as clear as possible an example of the predicament Jung faced – described in the last blog entry – when he saw that he, Freud, and Adler could each look at the same patient’s psychological case history and somehow arrive at three differing opinions regarding what was “consequential.” As stated earlier, it was in no small part to make sense of this frustrating conundrum that Jung developed his theory of psychological types. Essentially Jung realized that each person possesses an innate psychological type, something that is quite in line with Brooks’ above “set of internal models” and “pre-existing sensitivities.”
Another example, taken from Gifts Differing: Understanding Personality Type by Isabel Briggs Myers, involves two naval officer candidates who were asked what their primary concern would be if their ship was torpedoed: controlling the damage or the crew’s welfare. The officer with a more prominent thinking function answered “controlling the damage” whereas the officer with a stronger feeling function said “the crew’s welfare.” (In Myers-Briggs lingo, the former was INTJ; the latter INFJ.**). It is important to note that neither response/approach is necessarily right or wrong. The point is that, as stated in the previous “Myth and Justice” entries, both thinking and feeling are rational functions used to make evaluations and decisions. The former, thinking, is logic and systems-oriented and generally relies on dualistic categories of black and white, right and wrong, yes or no when making its somewhat mechanical decisions. In contrast, feeling makes its judgments according to a carefully chosen value or values schema dependent on the particular situation at hand.
Why is this important for us to acknowledge? The Brooks’ quote above comes from an Op-Ed piece he wrote entitled “The Empathy Issue.” It concerned President Obama’s controversial use of the term “empathy” when putting forward Sonia Sotomayor as his nominee for Supreme Court Justice. This one word caused much consternation, particularly among some conservatives, and served as the theme for numerous discussions both on- and off-line. It is not surprising then, if Mythfire’s research is accurate, that Sotomayor eventually distanced herself from the term “empathy” when being questioned by the congressional panel. Nor does it seem to have been much in evidence in the more recent vetting/questioning of the newest addition to the court: Associate Justice Elena Kagan.
The primarily conservative complaint against the notion of empathy playing a role in judicial decision-making is that in their minds empathy is not dissimilar from personal bias and, when enforced, judicial activism. All three of these terms – empathy, bias, and judicial activism – are so emotionally loaded that it is difficult to know how best to approach them. One tact would be to suggest that the emotions expressed say more about the people expressing the emotions in terms of personal often hidden fears and desires than they do about the energies or ideas contained within the words themselves.
Another tact would be to argue outright that all Supreme Court Justices, like all humans, are not immune to a values system resulting from their upbringing, life experiences, and individual reflection. These values include, of course, or at least are influenced by one’s political leanings, and who among us is going to deny that some of the justices are more to the right and others to the left? More media time is devoted to this fact every time a nominee is put forth than was ever given to the “problem” of empathy.
James Hillman offers this quote in his essay “The Feeling Function”:
“Sometimes we forget that the application of law by a judge is an operation of feeling, and that laws were invented not merely to protect property or assure the priesthood and ruling-class of their power, but also to evaluate difficult human problems and to do justice in human affairs. Judging is a matter of feeling, just as in the temples of Saturn a balance was displayed, or as Saturn in a horoscope is said to be well-placed when in the sign of Libra. A Solomonic decision is not one brilliant stroke through the Gordian knot of complexities, but rather a judgment made by feeling. Law concerns ‘cases,’ considers ‘claims’ and ‘obligations,’ and by means of it one can make ‘appeals.’ The Bill of Rights is a document of the feeling function at its abstract best. We erroneously believe that feeling must always be personal and that law is always cut and dried, forgetting the impersonal feeling values of law, of its ideas and its general application.” ***
What’s provocative for many people is the idea that feeling can be or is “abstract” and “impersonal.” What’s equally important here is the return of the balancing scales discussed in earlier blogs. A vital image/idea to the judicial process, then, is the weighing of impersonal, abstract feeling values. (It is in a similar vein that distinguished professor George Lakoff says in his editorial contribution to the Obama-Sotomayor debate that empathy “is at the heart of real rationality.” Feeling, as Jung originally claimed and Lakoff confirms here, is a rational function.****)
One perhaps unpopular example involving empathy as a feeling value is the not-so-hypothetical case involving a death penalty verdict against a defendant claiming psychological trauma as a child leading up to his killing of x number of victims. It is conceivable is it not that the degree of empathy felt for the defendant, in this case in the form of leniency, is weighed against the quantitative, i.e. number, and/or qualitative, i.e. cruelty, characteristics of crimes committed. Put more succinctly, empathy for the defendant is weighed against empathy for the victims and their families. Certainly, for some people (predominantly thinking types?) the death penalty should always be off the table as an option. For others it should always be on. However, while it remains an option, it is worthwhile to consider that values, and empathy as a primary value, are the very tool used to decide the convicted criminal’s fate which hangs in the balance.
That is to say that as with any other defendant the criminal’s fate hangs in the balancing scales frequently appearing in front of courthouses around the world – scales held by none other than Themis, the Goddess of Justice.
Next entry: Myth, Justice and “The Riddle of a Human Life”
** Myers, Isabel Briggs with Peter B. Myers. Gifts Differing: Understanding Personality Type. Palo Alto, CA: CPP Books, 1980, p. 110.
***Hillman, James.“The Feeling Function.” Lectures on Jung’s Typology. Woodstock, Conn.: Spring Pub, 1971, p. 119.