Thursday, February 07, 2013

Is there an intellectual empathy -- feeling the thrust of an argument?

How do I know what I think until I see what I say?” 
E.M. Forster 

Listening to Charlie Rose interview Sonia Sotomayor I was struck by one exchange. Rose was asking about empathy and Sotomayor in her answer said that among her worst experiences were discussions of cases among judges where they had not understood the case.

It seems to me that we often invoke duality to separate emotional understanding from intellectual understanding. But if you want justice, should you not expect judges to understand a case both emotionally and intellectually?

Sotomayor of course makes a very important case that judges should understand their own responses to a case -- both the sources of their emotions and their prejudices -- in order to better do what the law requires.

On the other hand, she referred to the members of the Supreme Court that overthrew Plessy v Ferguson. That Plessy decision is often identified as one of the worst in Supreme Court history but it stood for more than half a century. It seems to me that when the Warren Court overturned Plessy in Brown vs the Board of Education, they must have fueled their effort with emotional outrage at the injustice Plessy was causing.

I suppose my fundamental point is that we think with our brains and not just our conscious minds. Our best thinking is probably done through a righteous integration of the brain's emotional and logical processes.

How do I know what I think until I read what I have written?

In the discussion Sotomayor noted that there have been occasions in which after a preliminary discussion within a panel of judges, she was tasked with writing the majority opinion, and in the process of drafting that opinion decided it was wrong. She would then draft what she felt to be the correct opinion and bring both back to the panel.

Her point was that in the reflective process of writing an opinion she deepened her analysis and came to a new recognition of what she thought about the case. Sometimes she could bring a majority to her new view, and sometimes she found her opinion published as a minority view of the case.

I too find that writing, especially for distribution, helps to clarify my thinking. Indeed, that is one of the reasons I continue writing this blog.

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