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Long have I railed against the way the phrase ‘sense of’ has crept, like ragweed, into our daily discourse at every level. But this, from Gail Collins in conversation with David Brooks, is particularly egregious and illustrative:

And I walked away from the whole drama with a sense that there is a limit to what courts are good at doing, and that the best judges have a sense of humility about that.

So I’m hoping for a nominee who will have that empathy the president talked about, and the practicality to know when to use it.

I’ve stayed away from critiquing Obama’s ‘empathy’ line — because it’s become another instant blunt-instrument GOP talking point, but also because the less we can talk about empathy at this point, while still remaining humane human beings, the better. If I were in the business of adding to our crippling lingo, I’d go on about our unfortunate taste (Oprah, Tyra, etc.) for ‘empathy porn’ — the grotesque, commodified convergence point of Alasdair MacIntyre’s distaste for emotivism and his disdain of capitalism. But another reason I’ve tried to say little about empathy is that I can’t quite follow MacIntyre into the monastery on this one. I’d rather see if we can’t steer ourselves or one another toward marginally more noble dispositions and comportments within society.

That said, Collins’ discussion of the e-word is undermined by her surely unconscious reliance on the ‘sense of’ crutch. She wants to say that ‘practicality’ — i.e., leaving the onus of change on citizens and legislatures themselves, rather than “push[ing] us forward on great concepts” — derives in large part from a judge’s “sense that” they aren’t Nietzschean legislators of values, which in turn derives from a “sense of humility” about, I suspect, the non-negotiability of values. Here Brooksian ‘epistemological modesty’ about facts is given a Weberian symmetry — the soft relativism of modesty about one’s own values. This cuts in a nice way against the mimetic pattern established by the ‘urgency of now’ standard commonly associated with social-justice movements. But it also erodes our understanding of what the various limits courts should and do encounter are , and of what the humility proper to a person, citizen, and appointed judge is.

Assuming you think such things can never be settled, except perhaps in stipulative legal fashion, let the point be that Collins’ ‘senses of’ close off our very ability to have an intelligible, precise, fruitful, and wise conversation about limits and humility. As it stands, she’s simply gesturing toward vague spirits, in as risibly thin yet domineering metaphysical fashion as any taboo appeal to God-given this or that. In juridical terms, ‘senses of limits’ and ‘senses of humility’ are our latest and greatest Brooding Omipresences . But, of course, they don’t brood; they emanate warm fuzzies. If we want any good idea of what limits and humility are — and how humility, in reference to a vertical of authority, might sit in quite a different conceptual category from humility in reference to horizontal boundaries — we have got to cut through the sugar-frosted cobwebs of our ‘senses of’ things and get down to the things themselves.

More on: Current Affairs, Law

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