How the Moderate Enables the Liberal

David Brooks's recent column on judicial empathy is a wonderful example of the method by which moderates enable liberals. He begins with a strawman that in no way bears scrutiny:

The American legal system is based on a useful falsehood. It's based on the falsehood that this is a nation of laws, not men; that in rendering decisions, disembodied, objective judges are able to put aside emotion and unruly passion and issue opinions on the basis of pure reason.

Oddly, his very next sentence is, "Most people know this is untrue." If that's the case, perhaps Mr. Brooks should reconsider the accuracy of declaring the entire system's "basis." At the very least, some red flags ought to go up: It isn't accurate as a statement of our nation's founding, or else the Founders wouldn't have bothered interweaving the judiciary with the system of checks and balances. It isn't accurate as a statement about complaints against "judicial activism," which is made comprehensible by the fact that those who do the complaining don't promote the development of a system (one can imagine software) that takes the judgment out of judging.

By packing straw within reasonable-man's clothing, however, Brooks attempts to smuggle through an issue about which there would be some argument: that ours is a "nation of laws." His mechanism, here, is to present a definition of that phrase and to declare it false, while the substantive debate is over what the phrase means. I'd suggest the definition that our laws — not our personal histories, pedigrees, or credentials — set up the boundaries within which we should, as is unavoidable, rely on our human intellectual messiness. For his part, Brooks indulges in the falsehood that such plausible and necessary ideals are not ideals, but strict rules that may easily be proven to be impossible.

Thus, when he puts forward a perfectly banal observation about the process of decision making, he gives it the embellishing air of deconstructing a philosophical pillar of Truth (which, by the way, "most people know is untrue.")

The decision-making process gets even murkier once the judge has absorbed the disparate facts of a case. When noodling over some issue — whether it's a legal case, an essay, a math problem or a marketing strategy — people go foraging about for a unifying solution. This is not a hyper-rational, orderly process of the sort a computer might undertake. It's a meandering, largely unconscious process of trial and error.

The mind tries on different solutions to see if they fit. Ideas and insights bubble up from some hidden layer of intuitions and heuristics. Sometimes you feel yourself getting closer to a conclusion, and sometimes you feel yourself getting farther away. The emotions serve as guidance signals, like from a GPS, as you feel your way toward a solution.

Then — often while you're in the shower or after a night's sleep — the answer comes to you. You experience a fantastic rush of pleasure that feels like a million tiny magnets suddenly clicking into alignment.

Notice the transition of Brooks's subject from "the judge" to "you." He's shooting for a moment of recognition in the reader — an "oh yeah, I've felt that." At the other end of the transition, the author slips in what is likely subconscious legerdemain: "The crucial question in evaluating a potential Supreme Court justice, therefore, is not whether she relies on empathy or emotion, but how she does so." He's made us sympathetic to the process and now applies it to his specific topic so as to slip right past the significance of evidence that's already on the table, such as Sonia Sotomayor's view of legal indefiniteness, her use of the language of identity politics, and President Obama's view that "one of the roles of the courts is to protect people who don't have a voice."

Brooks's column, in short, skirts the relevant questions. He states that "Sotomayor will be a good justice if she can empathize with the many types of people and actions involved in a case," but he doesn't engage in the debate over whether that looks likely to be the case. He restates the "crucial question" in such a way as to brush aside previous attempts at an answer.He ends the piece by hearkening back to wise conservatives of yore, with the implication being that those participating in the particular current debate on the potential Supreme Court justice are drifting from those roots.

It makes a cartoon of conservatives to presuppose that we don't understand the limits of our humanity. If anything, conservatives focus on them and, as Brooks ought to know, construct our philosophies of governance around acknowledging them. In the case of the judiciary, we raise up the principle of objectivity — the rule of law — and encourage a system whereby the sides nominate judges who will strive to achieve that ideal, with some missing the mark to the left and some missing it to the right.

In the hands of "moderates," such strategies skew by virtue of their presentation. Aesthetically, modern "centrists" lean toward liberalism and so will tend to construct their obvious, nice-sounding abstractions in such a way as to elide the left's extremism while making the right's mainstream seem dogged and extreme. The end result is an expression of the truism that perfect balance and compromise is not realistic, which ultimately cedes to the liberal argument that factors outside of our shared system — be it legal, political, or social — ought to predominate.