Conservative critics of Obama's Supreme Court nominee, Sonia Sotomayor, are irrationally fulminating about her. One of their many gripes is that Obama stated that he sought a person who would be able to empathize with the individuals involved in particular legal cases. As he said on C-Span:
And you know, I said earlier, that I thought empathy was [an] important quality and I continue to believe that. You have to have not only the intellect to be able to effectively apply the law to cases before you.
But you have to be able to stand in somebody else's shoes and see through their eyes and get a sense of how the law might work or not work in practical day-to-day living…
How is that a bad thing? My friend, Chris Panza, picked up on the clear Confucian resonances in that statement:
Obama is clearly asking here that a judge be capable of expressing shu [reciprocity] –
he wants judging to incorporate (a) empathy and (b) he wants the
empathy to function in a way that it has the judge “put him/herself in
the place of the other.”
Confucianism is, of not, not alone in advocating ethical reciprocity, or "the golden rule" as it is known commonly. This notion is a keystone in many moral theories, Christianity not the least of them. So, why would conservatives go crazy over this? (I know, I know: their anger and frustration is not really about empathy or ethical reciprocity but ideology….). How can anyone really reject the sentiment of Analects 12.2:
Chung-kung asked about benevolence. The Master said, 'When abroad
behave as though you were receiving an important guest. When employing
the services of the common people behave as though you were officiating
at an important sacrifice. Do not impose on others what you yourself do
not desire. In this way you will be free from ill will whether in a
state or in a noble family.' Chun-kung said, 'Though I am not quick, I
shall direct my efforts towards what you have said.'
Indeed, it is something like this sentiment that Sotomayor is getting at in the now famous speech in which she uttered the "wise Latina" line. When I read the speech, I understood her to be saying that wisdom was not exclusively the domain of men, that wisdom emerges from the totality of our lived experiences, not simply the impersonal application of a general rule. How we judge will reflect how we have lived and how we have cultivated, in specific contexts, our moral empathy towards others.
Think about that line from 12.2: "do not impose on others what you yourself do not desire." It asks us to look into our hearts, to reflect upon our personal circumstances, and use that as a basis for empathy. Yes, there will be certain universal human qualities that transcend the you-other divide. Confucius understood that. He believed that most people, most of the time, would love their parents and their children and want to do the right thing by them. But how that universal human quality is expressed in particular social contexts will vary. It is precisely because of that sort of social variation that Shun, in Mencius's telling, had to interpret filiality as not telling his parents he was getting married, an act that would usually be considered unfilial.
Sotomayor is rather like Mencius in this. She is suggesting that the particular circumstances of her "Newyorkrican" heritage will shape her perception and understanding of the law. That does not mean she will ignore the law or dishonor the law. It means that when she is considering a case, as she looks into herself in an act of not imposing on others what she would not desire for herself, she will filter the law through her experience and circumstances in search of the best, most just, outcome. That's something we all do in actuality. And if you don't, if you mechanically and impersonally impose general rules without reference at all to circumstance and context, then you are lacking a fundamental sense of ethical reciprocity.
UPDATE: David Brooks, who has revealed certain Mencian tendencies in the past, comes close to what I am trying to say above: "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."
The Useless Tree 
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