« Judge Brown's Sleight-of-Hand in Al-Bihani--And Why It Matters... | Main | Choosing a Book, for Me »

Friday, May 14, 2010

What is the Opposite of "Parochial?"

At the radical splinter blog CoOp, Nate Oman has some thoughts about the Kagan nomination.  

As Kagan progresses through the Kabuki of the confirmation process we can expect to hear her supporters invoke the idea of empathy as a kind of liberal counterpoint to Roberts’s umpire analogy. The more I think about empathy and judging, however, the less I think that it has any substance at all.

. . . In Sotomayor’s case one could at least construct a facially plausible story about her biography in which her experience provided some insight into “ordinary people” outside of her legal expertise.

Not so with Elena Kagan.

There is nothing in her biography to suggest any special insight into the lives of “ordinary people.” The Upper West Side (my experience with native New Yorkers is that some non-trivial percentage of them take a positive pride in NOT understanding America beyond the five boroughs), prep school, Princeton, Oxford, Harvard Law School, a Supreme Court clerkship, work at an elite law firm, the University of Chicago, the Clinton White House, HLS again, and the Solicitor General’s office. There’s nothing in there that screams, “Special connection with the poor and the downtrodden, or even with the middle class and doing fine.” [Kagan] may well be able to see the world from the perspective of “ordinary people,” but if she does so it is by an act of imagination rather than memory.

None of this will keep folks from lauding Kagan’s “empathy.” If empathy is no longer tied to biography and identity politics is there anything left of it? The answer, it seems to me, is “Not much.” 

I disagree with Nate on various aspects of his post, and express my disagreements in a (grammatically mangled) comment on that post.  Let me just say here that I think Nate is conflating a few things -- perhaps understandably, since he's not the only one on either side to do so.  

The opposite of "parochial" is not "ordinary."  In fact, most "ordinary" people -- strike that: most people in general -- are parochial in their worldviews and experiences.  New Yorkers can be obnoxiously parochial, but then so can most people in most places.  The true opposite of "parochial" for our purposes is "cosmopolitan."  And cosmopolitanism, whether it is a virtue or not, is not generally something that sells Supreme Court nominees, for better or worse.  I don't know whether Kagan is genuinely cosmopolitan; indeed, one of the things that makes New Yorkers' parochialism sometimes uniquely off-putting is that they wrongly believe themselves to be cosmopolitan.  But the last two nominees I can think of who probably most fit the "cosmopolitan" profile were Stephen Breyer -- and Robert Bork.  One was confirmed, one was not; but in neither case did many people say, "We should confirm him because he's cosmopolitan, not provincial."  

In any event, empathy is a somewhat distinct matter from being parochial, "ordinary," or cosmopolitan.  It's a virtue that requires practice and inclination, not mere background.  I don't know whether Kagan is empathetic or not, and I'll leave the question of whether it matters to my comments on Nate's post.  But growing up on the Upper West Side doesn't guarantee that she's not, any more than growing up near a farm silo would guarantee that one is.   

Posted by Paul Horwitz on May 14, 2010 at 12:14 PM in Blogging, Paul Horwitz | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference What is the Opposite of "Parochial?":


Sublimation is the process by which a solid transforms into a gas without passing through the liquid stage

Posted by: sublimation | Jun 18, 2010 11:42:54 PM

Heat Press is designed to deliver maximum heat and production efficiency

Posted by: Heat press | Jun 15, 2010 6:13:02 AM

If I may...Doug,

You might be interested in the material I gathered together roughly a year ago at Ratio Juris when "empathy" became a hot topic in the legal blogosphere (it includes one of your posts as well as Paul's): http://ratiojuris.blogspot.com/2009/05/empathy-law.html

At Legal Ethics Forum there was recently this brief discussion: http://www.legalethicsforum.com/blog/2010/05/empathy-in-a-supreme-court-justice.html

Posted by: Patrick S. O'Donnell | May 16, 2010 10:09:02 PM

Nate, first of all, I'm contrasting cosmopolitan with parochial, and using it in the sense of a relatively denatured, unrooted, well-traveled member of the elite rather than in a deeper philosophical sense. I imagine others will have less trouble with Breyer as cosmopolitan under that definition. With respect to Bork: the Hotchkiss School, teaching at Yale, stints in high government office, the AEI -- it all seems pretty unrooted and brie-and-wine-circuit to me. Surely he is at least not the epitome of a "heartland" American, although he was born in Pittsburgh. Rick: touche. Doug: I hope the dialogue continues, too. I apologize for not saying more now, but other matters demand my attention. I've enjoyed the dialogue with Nate so far, and like many such dialogues I think it consists as much of clarifying our terms as of any strong disagreement.

Posted by: Paul Horwitz | May 16, 2010 9:37:26 PM

I hope this dialogue continues because I like efforts to make sense of the intriguing virtue(?) of empathy in a judge. I would also like to hear what Nate or others mean by judicial temperment and who on SCOTUS has more of less of this quality.

Posted by: doug berman | May 16, 2010 12:34:18 PM

Paul -- here in South Bend, the opposite of "parochial" is "South Bend School Corporation." =-)

Posted by: Rick Garnett | May 16, 2010 11:35:23 AM

Paul: I'd love to hear you expand on why you regard Breyer and Bork as cosmpolitan. On empathy, I suspect that we are closer than you make out. Frankly, I'm skeptical of the whole in-touch-with-the-effect-of-the-law-on-ordinary-people for some of the reasons that you point out. I would be content with a judge who is learned in the law, wise, and possessed of good judgement and a good temperament. I doubt there is some special insight into "ordinary people" that some judges have and some don't.

Posted by: Nate Oman | May 14, 2010 3:55:22 PM

The comments to this entry are closed.