Listening to hear is a start, but it’s also important to fairly consider conflicting viewpoints

This is the second of a series of articles for this column addressing different ways in which unchecked biases cause people to constrict the information they are able and willing to receive. As previously mentioned in the June 1 column, when constriction occurs, as it pertains to certain information and/or sources of information, the individual doing the constricting may "hear" such information; however, they fail to even receive it, as if it goes in one ear and out the other. In other words, they are not able and willing to mentally process the information. The person may well be able to cause you to feel heard, possibly heard and understood, and potentially even heard, understood, and fairly considered; nevertheless, if their unchecked biases are causing them to constrict and distort the information they are able and willing to receive, they are merely creating an illusion.

Listening to hear and understand is known as active listening and perspective-taking, among other things, and it involves cognitive empathy. Understanding, in this instance, is understanding what was heard or said, which is different from understanding the information itself. It is unquestionably important to listen to hear and understand other people's perspectives. One cannot mentally process information they have not obtained. Thus, listening to hear and understand is essential; yet, it is only the first step. Even if one disagrees with me about whether the information is actually received and processed, the unchecked biases still prevent it from being considered in a fair manner, so the impact is the same.

According to Daniel Goleman, the psychologist and author of international bestseller, Emotional Intelligence, "this kind of empathy [cognitive empathy] can help in, say, a negotiation or in motivating people.... But, there can be a dark side to this sort of empathy - in fact, those who fall within the 'Dark Triad' - narcissists, Machiavellians, and sociopaths (see Chapter 8 in Social Intelligence) - can be talented in this regard, while having no sympathy for their victims. As Paul Ekman, a world expert on emotions and our ability to read and respond to them in others, told me, a torturer needs this ability, if only to better calibrate his cruelty - and talented political operatives no doubt have this ability in abundance."

Cognitive empathy does not involve the skill of emotional self-awareness, which is defined as "knowing what one feels," and which happens to be the foundation of emotional intelligence, skills which are essential for reducing and otherwise keeping biases in check.

By way of example, each of the justices on the United States Supreme Court who voted to overturn Roe v. Wade can most certainly state the various pro-choice perspectives and those opposed to states' rights in that regard. Despite that, their minds were made up on that issue, among many others, long before they became United States Supreme Court justices. In fact, those individuals were nominated and confirmed because of their actual and perceived beliefs on issues such as abortion, because those beliefs were perceived as fixed, and because it was anticipated that they would act in accordance with those beliefs.

Along those lines, consider the following information conveyed by a panel in the Feb. 22, 2021 American Bar Association program titled Is There a Case for Structural Reform of the U.S. Supreme Court?:

Miguel Estrada, a Republican and partner in the Washington D.C. office of Gibson, Dunn & Crutcher said, "There is a concentration on outcomes over qualifications.... We used to have a system where, at least pro forma, we professed to look at qualifications and standing and now those have taken a back seat to our expectations of how the candidate will rule on particular cases. Stephen Carter, a Democrat and professor of law at Yale Law School said, "The best protection for the integrity of the bench in the sense of avoiding conflicts and biases and prejudices is the selection of judges and justices who are people of genuine integrity.... Part of the problem with trying to enforce rules for recusal we saw in what is, at least among ethics scholars and maybe others as well, the very famous opinion by Judge Higgenbotham from many years ago, when he was essentially asked to recuse himself from a case on the ground of his extensive and, really, very thoughtful writings about race and the law.... He wrote an opinion that continues to be taught, explaining very carefully the difference between a judge who is known to have a view on a subject or who has been educated or learned as a scholar in a subject and a judge who has a bias that the judge is unable to escape. Those simply aren't the same things. But again, in the end, I think that the only real protection is the selection of people of genuine integrity." All of the panelists, regardless of their politics and political affiliation, appeared to agree on these points.

Judges are supposed to decide cases in an impartial manner. This does not mean that judges are free of bias (which is humanly impossible); rather, it means that judges are supposed to possess the character and integrity to do the work required to keep their biases in check, to the extent humanly possible. That is not the case, when the reason judges are nominated and confirmed is for their actual and perceived biases and their lack of character and integrity to keep them in check, to the extent possible, when deciding cases.

While that ABA program pertained to judges, those judges are human beings. We all have biases, and, with few exceptions, we all possess the ability to develop the skills and abilities to keep our biases in check, to the extent possible, if we possess the requisite character and integrity. If people whose job requires them to decide cases in an impartial manner are unable or unwilling to do so, people who are not required to act impartially have even less motivation to do so. I have absolutely no doubt that each of us has, on many occasions and with most everyone, touched upon certain topics in which a person's beliefs are fixed, even though beliefs are not objective, verifiable, and unquestionable facts, and many of those beliefs are accepted on pure faith.

The title of this column, Balanced Scale, refers to the scale of justice, which is described on the Supreme Court's website as "symbolizing the impartial deliberation, or 'weighing' of two sides in a legal dispute." Some synonyms for "impartial" are fair, just, objective, and unbiased.