President Obama has seen the new Star Trek movie. "Everybody was saying I was Spock, so I figured I should check it out,"he told Newsweek, making the Vulcan salute with his hand. Some critics will see this as a new opportunity to question his citizenship. I think it can help them understand Obama's views about the law.
As Dahlia Lithwick has pointed out, conservatives have been trying to figure out what to make of the president's claim that he will look for "empathy" in his Supreme Court pick. It's not a new claim. Sen. Obama cited John Roberts' lack of empathy as the reason he was voting against him. (Jeffrey Toobin argues Obama has been vindicated.) For some, the confusion over empathy has become acute. Republican Party Chairman Michael Steele, who has promised to bring a hip-hop feel to his party, said: "Crazy nonsense empathetic! I'll give you empathy. Empathize right on your behind!" A graduate of Georgetown University Law School, Steele was not quoting case law but, apparently, representing.
I can't match Steele as a battle-rapper. But in his pop-culture spirit, let's embrace the Spock analogy. Though Spock had a human mother, he had a Vulcan father, and he prided himself on his use of reason and logic untarnished by emotion. With a few exceptions, Spock was always the coolheaded one while Captain Kirk was busy rushing around finding handles he could fly off of. At the same time, however, Spock had a great capacity for empathy because he had the ability to enter the minds of other people! (Or humpback whales, as the case may be. Stick with me—at least I'm not talking about anyone's behind!)
Obama is often compared to Spock because he never gets too hot or too cool and speaks in the careful way of a logician. But the president and the fictional character seem to have the same kind of empathy, too. Conservatives have interpreted Obama's call for empathy as some kind of soft-headed, group-hug approach to law, where how a judge feels about a case or a plaintiff is more important than anything else. Actually, as Dahlia and others have pointed out, all that Obama appears to be asking is that jurists have the capacity to embrace different perspectives and as much as possible stand in the shoes of those who will be affected by their rulings. The point is not to be overcome by fellow-feeling but to gain perspective.
Two recent illustrations of the president's empathetic understanding have nothing to do with the Supreme Court. When deciding whether to release the photographs of detainees in Iraq and Afghanistan, Obama's first instinct was to make them public. He has said that he believes in transparency. He has also said that he believes that mistreating prisoners is a moral failing with wide-reaching implications. However, because he is able to empathize with the soldiers and the military—that is, put himself in their position for the purposes of understanding their argument—he came to a decision that overruled his instinct.
And in Sunday's commencement address at Notre Dame, the most religious speech of his presidency, the president recalled his exchange with a pro-life doctor who had taken issue with a passage on Obama's campaign Web site that criticized "right-wing ideologues who want to take away a woman's right to choose." The doctor said that no fair-minded person could simply dismiss all opponents on the other side of the argument as mere ideologues. "After I read the doctor's letter, I wrote back to him and I thanked him," said Obama. "And I didn't change my underlying position, but I did tell my staff to change the words on my Web site. And I said a prayer that night that I might extend the same presumption of good faith to others that the doctor had extended to me. Because when we do that—when we open up our hearts and our minds to those who may not think precisely like we do or believe precisely what we believe—that's when we discover at least the possibility of common ground."
This is not Bill Clinton's "I feel your pain." Rather, it's "I see your point of view." For Obama, empathy has long been the key to delivering the change in the political structure that he talks so much about (and that he undermines when he resorts to straw-man arguments). Here's how he explained this approach as it applies to his decision-making: "[Opponents] might not, at the end of it, agree with me, but having seen how I'm thinking about a problem, having a sense of how I'm making decisions, that I understand their point of view, that I can actually make their argument for them, and that that's part of the decision-making process, it gives them a sense, at least, that they've been heard, and … it pushes us away from the dogmas and caricatures that I think get in the way of good policymaking and a more civil tone in our politics."
Of course, the downside to this whole Spock comparison is that, well, Spock is a fictional character. Spock could inhabit another person's mind and not let it affect him. We cannot create an emotion-free wall between empathy and reason. In fact, some might argue that the whole purpose of the law is to allow our institutions and affairs to be governed by durable reason instead of momentary passions.
There's also one other big flaw in the analogy. Apparently in the new Star Trek movie, Spock actually loses his cool for a moment and shows his emotion. That would never happen with President Obama.