Editore"s Note
Tilting at Windmills

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May 9, 2009
By: Hilzoy

"I Don't Believe I've Ever Met A Homosexual"

James Kirchick writes:

"I oppose using a person's sexual orientation as a job qualification for the same reasons that I oppose the privileging of a candidate based upon their race or sex: It boils individuals down to their immutable traits. The only aspect that Obama should consider as he weighs his options over the next few days is the candidates' jurisprudence."

Matt Yglesias responds:

"The nature of the Supreme Court is that a great many of its most important cases concern the rights of women and various kinds of minority groups. It's absurd to think that a forum of nine white, male, heterosexual Christians could possibly compose the best possible forum for deciding these kinds of issues. The reality is that a nine-person group can't possibly fully represent the diversity -- in terms of religion, sexual orientation, ethnicity, gender, etc. -- that exists in the country at large. But one can do better or worse on this regard and it makes perfect sense to aspire to do better. That's not an alternative to caring about the quality of the jurisprudence, it's part of trying to get good jurisprudence."

This is absolutely right, and I think it's why Obama was right to say that he wanted to nominate a justice who is not just "dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role", but who has the "quality of empathy, of understanding and identifying with people's hopes and struggles". This is not opposed to caring about getting the law right; it's about understanding what is at stake in various cases well enough to see how the law, as it is written, actually applies.

To see why this matters, consider an anecdote about Justice Powell's deliberations in Bowers v. Hardwick.

Bowers was a case in which Matthew Hardwick, who had been arrested for engaging in consensual homosexual sex in his own home, challenged the Georgia sodomy statute under which he had been charged. One of the crucial questions on which the case turned was: are sexual activities between consenting adults, carried out in their own homes, protected under either the ninth or the fourteenth amendments?

Given previous cases involving the right to privacy, it was crucial to decide whether such acts involved what Justice Blackmun, in his dissent, called "the fundamental interest all individuals have in controlling the nature of their intimate associations with others", or just a right to engage in homosexual sodomy, as the majority claimed. Is the right to decide which consenting adult to have sex with, and how, one of those fundamental interests that we take the ninth and fourteenth amendments to protect, or is it not?

In their arguments (1, 2, 3), the majority discussed only gay sex, even though the Georgia statute also criminalized heterosexual sodomy. They also described their findings in terms of their application to homosexuals, saying things like: "The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy."

One might therefore ask: did the various Justices have any clear conception of the importance, to gay men and lesbians, of being able to have sex with the people they love? One might think that anyone would understand that, but that is only true if one accepts the idea that gay men and lesbians are people, rather than members of some strange alien species. So: how did the Justices think about gay men and lesbians?

Here's some evidence from Jeffrey Toobin's The Nine, pp. 218-219 (note that Justice Powell was the swing vote in this case, and came down in favor of upholding Georgia's sodomy statute):

"One Saturday in the spring of 1986, Justice Lewis Powell struck up a conversation with one of his law clerks, Cabell Chinnis Jr., about Bowers v. Hardwick. As Chinnis recounted the exchange to Joyce Murdoch and Deb Price, authors of a history of gay rights at the Supreme Court, Powell asked about the prevalence of homosexuality, which one friend-of-the-court brief estimated at 10%. Chinnis said that sounded right to him. "I don't believe I've ever met a homosexual", Powell replied. Chinnis said that seemed unlikely. Later the same day, Powell came back to Chinnis and asked, "Why don't homosexuals have sex with women?" "Justice Powell," he replied, "a gay man cannot have an erection to perform intercourse with a woman." The conversation was especially bizarre not just because of its explicit nature but because Chinnis himself was gay (as were several of Powell's previous law clerks.)"

You have to feel for the poor clerk: there he is, a closeted gay man, being quizzed by his boss about why homosexuals don't have sex with women. (Apparently, Justice Powell wasn't thinking of lesbians at all.) I think that a good working definition of empathy would be: that quality that allows a straight man or woman to know the answer to that question without having to ask his or her law clerks. And I would think that the fact that Justice Powell had to ask that question might explain why he believed, falsely, that he had never met a homosexual: if you were gay, would you tell him?

Justice Powell was, as I said, the swing vote in a case that upheld criminalizing consensual gay sex carried out in the privacy of one's own home. It seems pretty clear that he had no conception of what it was like to be gay, and was therefore in no position to decide on the importance of the rights that he was deciding on. That is not a good way to interpret the law when, as in this case, the importance of a right is central to the question whether or not it is protected.

Consider how different things might have been had there been an openly gay man or woman on the Supreme Court, one who might have explained his or her take on this to Justice Powell.

I do not believe that we ought to try to represent every group in existence on the Supreme Court. Most importantly, representation obviously matters less than things like wisdom, devotion to the law and to its faithful interpretation, depth of understanding, and so forth. For another, there are only nine justices, and many more groups whom it would, other things equal, be good to represent. (This is one reason why empathy matters: it's obviously impossible to represent everyone, so there's no substitute for Justices being able to understand the impact of their decisions on people unlike themselves.) And the groups people normally think of are not all the relevant ones: in terms of understanding the importance of laws to those they affect, I think that Sonia Sotomayer's having grown up in the projects is as important as the fact that Kathleen Sullivan and Pam Karlan are openly gay.

(Side note: some conservatives seem to think that empathy necessarily favors criminals. I don't think this is true at all. Growing up in the projects might give someone a particularly clear understanding of just how much damage crime does to inner city communities. I think that it's the understanding that matters, not which side it turns out to favor in a given case.)

But Kirchick is not objecting to the idea that we should care only about getting representatives of various groups on the Court, which I agree is absurd. He says that sexual orientation should not be "a job qualification", which I take to mean that it should not be a consideration at all, even when one is choosing between several highly qualified candidates. For the reasons given above, I think this is wrong. And it's not wrong because representing groups matters more than good jurisprudence, but because, as Bowers v. Hardwick makes clear, ignorance can lead to bad law.

Hilzoy 1:54 AM Permalink | Trackbacks | Comments (25)

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Comments

Fantastic post. I find it very depressing that 'empathy' has now become an epithet, as though blindness to the actual shape of the lives of others (i.e. lack of empathy) somehow will help achieve fairness. As you suggest, just the opposite is the case.

Posted by: J. on May 9, 2009 at 2:30 AM | PERMALINK

If not empathy, then apathy will reign. How can a jurist on the Supreme Court adequately interpret a living document like the Constitution of the United States without empathy? We are in serious peril with the apathetic ones that sit there now.

Posted by: jcricket on May 9, 2009 at 2:38 AM | PERMALINK

Jamie Kirchick is a self-hating gay man and factotum to Marty Peretz, so what he has to say about any issue should be noted, and then quickly forgotten.

Posted by: commie atheist on May 9, 2009 at 3:02 AM | PERMALINK

Everyone appointed to the court brings a personal point of view.Those who are ardently Catholic will be consistently against abortion rights, but noone suggests that there should be no Catholic judges.

Posted by: marvin thalenberg MD on May 9, 2009 at 6:10 AM | PERMALINK

Many right-wingers like to idealize themselves as super-rational, dispassionate Ubermenscen -- well, Vulcans, really. They even believe this when they are spewing out anger and hatred. It's the damnedest thing.

Posted by: hells littlest angel on May 9, 2009 at 6:34 AM | PERMALINK

After retiring from the Court, Powell is said to have regretted the decision as well as the impact it had.

I for one am sick of these "deathbed conversions". It does the injured parties no good that someone feels bad about their bad behavior out of the fear of their approaching mortality. Lee Atwater comes to mind. If I'd been at his deathbed, I've had told him to shut the fuck up.

Posted by: jprichva on May 9, 2009 at 6:59 AM | PERMALINK

I just looked up the % of the population that is gay http://www.gallup.com/poll/6961/What-Percentage-Population-Gay.aspx
Anywhere from 2-10% depending on the source.
I guess empathy is OK if you are the upper 2% of the population according to wealth , but if you are a part of the rest , not so much.
Christian family values

Posted by: John R on May 9, 2009 at 7:06 AM | PERMALINK

It's not perfect, but frankly, compared to the situation 50 years ago, or 30 or 10 or 2, I think the idea that sexual orientation should not be a factor in the choice of a Supreme Court justice is a vast improvement.

Posted by: rabbit on May 9, 2009 at 7:20 AM | PERMALINK

Something to keep in mind is that the Court is the Supreme (Appeals) Court, except when states have disputes. I dont know how the lower courts decided Bowers v. Hardwick, but intelligent, reasonable people have trouble considering anal sex -- even Alex Comfort did, since anal sex is conspicuously absent from The Joy of Sex. Recognizing the social needs of gays and lesbians might require more empathy than the average person possesses.

Having empathy and knowing that laws arent written by technicians but are often written by semi-ignorant politicians, targeting various groups, are important, or the best jurists would be expert systems equipped with complete legal and judicial databases and an excellent parsing function.

Overall, though, Id favor giving the most weight to demonstrated ability in resolving cases with due attention to legal precedents, either theoretically (in classes) or in practice (in court). Intellectual giants who noticeably lack empathy wont even be considered.

SRS

Posted by: Steven R. Stahl on May 9, 2009 at 7:57 AM | PERMALINK

"Lee Atwater comes to mind. If I'd been at his deathbed, I've had told him to shut the fuck up."
Posted by: jprichva on May 9, 2009 at 6:59 AM

Now, I woulda had his recantation recorded on video, and played it in heavy rotation as an ad on FauxNews (as if they'd play such an ad).
I've spent far too many hours trying to figure if reichwingers are the world's biggest practitioners of cognitive dissonance, the world's biggest liars, or the world's biggest hypocrites. (I'm sure they're all of the above -- plus the world's biggest psychos, and, in many cases, the world's biggest closet cases.)
But on the off-chance that any of them actually believe what they profess about the afterlife and the judgement, such an ad might have a salutary effect.

Posted by: smartalek on May 9, 2009 at 8:19 AM | PERMALINK

"The conversation was especially bizarre not just because of its explicit nature but because Chinnis himself was gay (as were several of Powell's previous law clerks.)"

And I'd bet judge Powell would have vouched for the good character of each and everyone of his secretly gay law clerks.

I'm saying this because I'm reminded of a strange phenomenon among some xenophobic relatives of mine. While they have strong negative opinions about immigration in general, the immigrants they know personally are all fine people and therefore exceptions to the rule.

What never strikes them though, is the thought that maybe there's something wrong with the rule.

Posted by: SRW1 on May 9, 2009 at 8:33 AM | PERMALINK

Jesus taught that there was something more than the letter of the law.

Republicans oppose judges who understand this.

Posted by: chance on May 9, 2009 at 8:37 AM | PERMALINK

And, now, may we get back to building diversity on the court - Such as raising the current 56 percentage to 67% for White Male Roman Catholics. This would be ever soooo much closer to their over 80% of Archie Bunkerdumb in the nation. We can always find a jurist who has an African-American mother, a Jewish Hispanic father and who is a transsexual, eh, to bring "balance" to the court.

Posted by: berttheclock on May 9, 2009 at 9:09 AM | PERMALINK

“forum of nine white male...”
Thomas is white?
Ginsburg is a male?
Who knew?

Posted by: Chopin on May 9, 2009 at 9:38 AM | PERMALINK

The legislative branch exists to represent the people in the making of law. As a whole, the legislative branch includes members from a wide range of American life. My own member of the House holds views I loathe. Other members hold views I support. In the overall process, my interests do get represented.

The judicial branch exists to decide on the basis of actual cases, not hypothetical ones, how the law applies. Judges must put the law before their personal views and before their own demographics. To decide the case before them, judges must listen to the facts and arguments presented. Rule of law means that they should not come into the courtroom with their minds made up about the outcome before hearing the facts and arguments. Empathy in a courtroom may mean that the judge is an attentive listener, taking both sides seriously as they present the facts and arguments.

Posted by: jpeckjr on May 9, 2009 at 9:55 AM | PERMALINK

Kirchick doesn't want Obama to consider a SCOTUS nominee's sexual orientation? (Or "tendencies" as conservatives call it?) That is strange.

Normally, Kirchick rubs his gayness (his great excuse for not exercising his affection for agressive martial views. Or is it that he is a unpatriotic, mangina, like his mentor Marty Peretz?)or Jewish ethnicity in readers noses.

I bet Kirchick's opinion has more to do with his dislike of Obama--and we all know what happens when prima donna put you on his shit list--than his opposition to chosing someone for his/her jurispridence and sexual orienation. (Sorry. "Tendencies.")

Posted by: tec619 on May 9, 2009 at 9:57 AM | PERMALINK

The question of forced diversity within a small group is fraught with problems in that since all contingencies can not be accounted for, who gets to decide which characteristics are the most important and should be represented. I, like many people in this country, am Buddhist. So should we insist that a Buddhist be part of the court? Of course not. All this seems to grow out of the "litmus test" promoted by conservatives during the hearings held for the last couple of justices. While the freedom from oppression based on sexual orientation is important, it does not follow that the new justice must have expressed her or his sexual orientation one way or the other. I do not have to cut off an arm or leg to appreciate the trials and challenges that physically disabled people face everyday for the rest of their lives. Empathy and intelligence and the ability to listen and ask questions will allow me or the next justice to arrive at the correct conclusions.

Posted by: Milt on May 9, 2009 at 9:58 AM | PERMALINK

I for one am sick of these "deathbed conversions". It does the injured parties no good that someone feels bad about their bad behavior out of the fear of their approaching mortality. Lee Atwater comes to mind.
=======================

Wasn't Atwater's "repentance" ghostwritten?

Posted by: If not, I'll apologize on my deathbed on May 9, 2009 at 10:21 AM | PERMALINK
I find it very depressing that 'empathy' has now become an epithet, as though blindness to the actual shape of the lives of others (i.e. lack of empathy) somehow will help achieve fairness. As you suggest, just the opposite is the case.

The people making that argument are not longing after a jurisprudence with fairness at its heart. They're longing after a jurisprudence with vengeance at its heart.

Posted by: Davis X. Machina on May 9, 2009 at 11:05 AM | PERMALINK

Many right-wingers like to idealize themselves as super-rational, dispassionate Ubermenscen -- well, Vulcans, really. They even believe this when they are spewing out anger and hatred. It's the damnedest thing.

To compare rightwingers with the Noble Vulcan is an insult, and is not logical. Where the Vulcan is a rational being void of emotion, rightwingers are irrational and void of logic. Vulcans would not spew hatered and anger, even toward Romulans.

"I just looked up the % of the population that is gay. Anywhere from 2-10% depending on the source.
I guess empathy is OK if you are the upper 2% of the population according to wealth , but if you are a part of the rest , not so much.
Christian family values"

Give me a break. Statistics based on a poll of people in the closet is useless. I wonder if those clerks in Roberts office were included in that poll? Get real. Further, the state of a person's wealth has absolutely nothing to do with whether they are empathetic to the plight of others or not. All rich people are not greedy, self serving, or self rightgeous. Some rich folks actually have a conscientious, not many, but some.

Don't confuse "emphathy" with "sympathy". I feel bad for ignorant people, but I do not share that ignorance. Notice I did not even broach the "Christian family values" comment.


Posted by: sinya on May 9, 2009 at 11:07 AM | PERMALINK

This'd be more of an issue if Kathleen Sullivan weren't in the single digits of everyone whomsoever's list of top constitutional scholars.

The question isn't whether to nominate her b/c she's gay.
The question is what's the f*&$ing holdup on nominating her already.

Posted by: Slaney Black on May 9, 2009 at 11:45 AM | PERMALINK

One of the more interesting facts about the aftermath of Bowers v. Hardwick is that the Georgia Supreme Ct. overturned the sodomy statute a few years later in Powell v. State, 270 Ga. 327 (1998). Seems that the sodomy law applied to oral and anal sex between any consenting adults, no matter what the gender mix. Powell involved heterosexual sodomy. Supposedly one of the Justices was a little taken aback to learn that things he and his wife did in the privacy of their bedroom was illegal.

Another take on this is the fact that stories of Newt Gingrich and fondness for oral sex from his staff were rampant at that time...you know, 1998, when he was going after Clinton. At least Clinton wasn't committing a felony in the Oval Office.

Posted by: majun on May 9, 2009 at 12:20 PM | PERMALINK

Leave the room and they change the rules...

EMPATHY: Emotional identification through common experience.
("Yeah, boy, do I ever know about that!")
SYMPATHY: Emotional identification through imagination.
(Jeez, that must be awful, you poor guy!")

Next thing you know they'll make verbs out of perfectly good nouns like IMPACT.

Posted by: buddy66 on May 9, 2009 at 1:18 PM | PERMALINK

Another example of what happens when you're clueless *and* unable to empathise because of it, was mentioned, very recently, by Ginsburg. She was talking about the case of that 13yr old girl, whose underwear had been searched for ibuprofen. None of the males on the court had any clue about how humiliating it was for the girl, because males are less conscious of the imperfections of their bodies.

So yes, I'd like to see at least 4 women on the Supreme Court. My only reservation about Sotomayor is that, as a Hispanic, she's likely to be *yet another* Catholic and we already have an overload of those. How about an atheist?

Posted by: exlibra on May 9, 2009 at 3:11 PM | PERMALINK

the whole thing on both sides is ridiculous:

you couldn't pick a worse defender of minority rights than clarence thomas.

Likewise it is wrong to assume a white male doesn't have the capacity to comprehend the issues important to women and people of color.

certainly all other qualifications being roughly equal, it is best if society's is roughly reflected in all organizations. But it is just wrong and stupid to put race or gender as a priority in the selection of a supreme court justice. But it would also be completely disingenuous for any one to claim that there are not supremely qualified women, minorities, or homosexuals for the SCOTUS and I have no doubt that Obama can find one. My bigger concern is that Obama will try to please the wingnuts (an impossibility) by picking some one way to in line with the conservative agenda.
.

Posted by: pluege on May 9, 2009 at 6:03 PM | PERMALINK




 

 

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