“Empathy”

Will Wilkinson makes the case for diversity on the judicial bench, and it’s about the best that someone who lives by the Philosophical Investigations could possibly hope for. No matter what some might try to tell you, rules and rulings just stand there like signposts; they don’t interpret themselves, and the fact that the work of interpreting and applying rules is markedly more difficult than the usual business of reading and following signposts is exactly the fact that makes the job of judges so important. And while it’s certainly true, as Will makes clear, that the real job of a judge is to interpret the existing rules, and not to lay down rules of his or her own, this doesn’t alter the potential for personal habits and perceptual or cognitive biases accrued over the course of one’s life to affect his or her interpretation, both for better and for worse:

Even when there is unanimity about the meaning of a rule, there may be disagreement about whether and how a rule applies in a particular instance due to differences in the habits of attention and sentiment that guide judgment. If a society has a history of inequality, people within different groups may have developed very developed very different but also very reasonable habits, and will therefore make very different judgments, for good reasons, even if there is zero disagreement in the abstract meaning of rules.

Obviously this last point needs to be put with quite a lot of care. The idea is not that, absurdly, only a woman can adjudicate a woman’s case, or only a minority a minority’s. Rather, it is that a particular sort of homogeneity of background among those assigned to be the ultimate interpreters of the law can tend to undermine one of the most natural motivations for having there be more than one such interpreter in the first place. Instead of allowing overlapping biases simply to reinforce one another, it seems much better to bring together a range of differing perspectives and idiosyncratic habits and let the truth emerge through dialogue.

In my case as in Will’s, all of this is a bit academic. Perspectives and habits built up over the course of a life are one thing, substantive views on principles of interpretation quite another; and in all likelihood, an Obama appointee will have some of the latter with which there is good reason to take serious issue. Moreover, in quite a lot of cases the “diversity” fixation has got much more to do with a desire for simple rainbow-coloredness than with subtle concerns about signposts and the intricacies of rule-following. Indeed, “empathy” is a much better term for the kind of characteristic that deserves to be sought after here than the d-word is. Too bad it’s impossible to have a serious political conversation about either.

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