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Empathetic judges and elected judges

Just got done trying my case, to a new judge who'd  just been elected this past November.  I've known him casually for a long time, and he's a good guy, but he's a former prosecutor, so I wasn't quite sure what to expect.  Turned out fine:  the judge was eminently fair.   And it was a pleasure to try a case in his courtroom:  he had an easy and comfortable way with the jurors and the lawyers.

Which got me thinking about one of the (few) benefits of having elected judges, and about the debate raging in Washington about the latest Supreme Court nominee.

That debate, of course, centers around two remarks, one made about Judge Sotomayor and one made by her.  The former is President Obama's statement that Sotomayor fills the bill for the kind of justice he was looking for:  one who has "the empathy to recognize what it's like to be a young, teenage mom; the empathy to understand what it's like to be poor or African-American or gay or disabled or old."  The latter is Sotomayor's remark at a luncheon at 2001 that she "would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

Of the two, Obama's remarks are the sillier.  In the context of Sotomayor's speech (full text here), it's apparent she wasn't preaching Latin ethnic supremacy, but merely suggesting that her experiences gave her an advantage that a judge without those experiences wouldn't have.  Silly nonetheless; as she acknowledged in the same speech, it wasn't a group of formerly poor and disadvantaged blacks who decided Brown v. Bd. of Education, it was nine old white men, whose only experience with discrimination was practicing it -- Earl Warren, as California Attorney General, played a significant role in the internment of the Japanese-Americans during World War II.

Obama's remarks are worse, because they led to the obvious rejoinder that he's calling for judges to bend the law to conform to their sympathies for certain groups.  (Presumably, a black 17-year-old lesbian who had a child while suffering from hypertension would win the trifecta of victimhood.)  This plays right into the hands of conservatives who argue that the choice is between judges who will objectively apply the law as it is written, and those "activist judges" who will "legislate from the bunch" to satisfy their own biases.

That dichotomy is dependent upon the great myth of the Constitution as Holy Grail:  that there is only one true interpretation of any constitutional provision, which can be divined by objective analysis.  This is nonsense, of course.  The Constitution is replete with murky phrases -- "general welfare," "probable cause," "cruel and unusual punishment" -- and reasonable people have spent the past couple centuries debating their meaning, and coming to different conclusions. 

The corollary myth is that a good judge does not allow any of his own feelings and experiences to interfere with his objective judgment.  This too is nonsense.  From a purely logical viewpoint, there is nothing unconstitutional about "separate but equal" facilities.  In 1898, the Supreme Court upheld that doctrine in Plessy v. Ferguson, then in1954 overruled it in Brown v. Bd. of Education.  The major distinction was that by 1954 there was much social research on the traumatic effects of segregation on blacks.  In short, the justices in 1898 felt more empathetic to the plight of white people being forced to ride a train car with blacks, while the justices 56 years later felt more empathetic to the plight of black people denied the right to use the same train cars, swimming pools, drinking fountains, and schools. 

Still, we're talking about normative standards here, not what actually happens, and Obama's remarks, especially, lay bare that issue:  should a judge "recognize what it's like" to be poor or black or gay or disabled, or, for that matter, rich or privileged or a victim of a crime or a defendant charged with one?  That's a closer call, but empathy isn't the same as sympathy:  one can have understanding of the litigants before a court without necessarily molding a decision which unduly favors one or the other.  In fact, sometimes that understanding is essential.  A month ago I wrote about the case involving the strip-search of a 13-year-old high school student; the Supreme Court's decision is anticipated by the end of this term.  Every 4th Amendment case involves a balancing of two interests:  the liberty interest in privacy, versus the government's interest in preserving order.  How do you evaluate the privacy interest without understanding what a strip search would mean to a 13-year-old girl?

What does all this have to with elected judges?  One of the problems I've always had with electing judges is that it's impossible for the average voter to make an intelligent decision about whether a particular candidate has the skill sets necessary to be a good judge:  legal knowledge, judicial temperament, and a good instinct for fairness.  But my experiences over the last couple of days of trial, and the ongoing debate about Sotomayor, led me to realize that if empathy is a skill set for a judge -- and I think it is -- then electing judges is one way to ensure that a candidate possesses that skill:  after all, getting elected (and even nominated, for that matter) requires a fair amount of ability to interact socially.  Someone who completely lacks empathic skills is unlikely to get to very far in the electoral process.

Of course, the down side of that is that empathy is not necessarily all-embracing.  I've found a number of judges who seem to have plenty of empathy for prosecutors, police officers, crime victims, and insurance companies.  I didn't have that experience this past week, but believe me, I've had it before.


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