Wednesday, July 18, 2007

To Know is To Understand

Continuing on the Obama beat, Ann Althouse brings us word of the criteria Obama says he will use to select judges: "The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

Now, unlike some I am not worried that the judges a President Obama would appoint would lack knowledge of law or would be bereft of formal qualifications. And within that confine, I think that what Obama is talking about is a valid and important quality to consider in judicial appointments. Two early posts I wrote explained why I thought "sympathy" could be a valid part of judicial decision-making procedure. More concretely, I recently examined how a diverse array of experiences is really important for a good judiciary. A diverse institution brings a tighter understanding of the actual, material impact of certain laws or policies than a monolithic judiciary does. For example, in determining whether a given law constitutes "an undue burden on a woman's right to choose", men only have a second-hand experience with the situation and facts in question. That doesn't mean they're incapable of ruling, but it does mean that their decision is likely to be less well-informed than it would be if there was a female voice on the bench. In other cases, perhaps castration, it might be important to have a male voice on the panel, because the material effects of castration on one's bodily autonomy might be clearer to him than to a female judge (by and large we have no shortage of male judges, so this isn't a problem, but the point is that experiential diversity cuts all ways). By contrast, when the judiciary is monolithic or monochromatic, fundamentally subjective positions and a particularized standpoint are draped in the cloak of "The Law" and become unchallengeable Truth or Reason. Jack Balkin explains:
If we do not investigate the relationship between our social situation and our perspectives, we may confuse our conception of what is reasonable with Reason itself. If we do not see how our reason is both enabled and limited by our position, we may think our judgments positionless and universal. We may find the perspectives of those differently situated unreasonable, bizarre, and even dangerous, or we may not even recognize the possibility of another way of looking at things.
The alternative is to proactively try and create a judicial system that is at least somewhat representative of the polity it is ruling upon (and thus will have access to as good a cross-section of perspectives as possible). As Cass R. Sunstein remarks, "In a system of free expression, exposure to multiple perspectives will offer a fuller picture of the consequences of social acts. This should help make for better law."

To sum up: The idea that there is a trade-off between judges who are best at interpreting the law, and judges who "understand" the experiences of those whose voices are least likely to have elite import, is a fallacy. Contributing to the experiential diversity of the court (or at least being cognizant that these differing experiences matter) is part of what makes one a good judge. If President Obama nominates judges with an eye towards this quality, along with, of course, their formal qualifications and experience, he'd be doing the judiciary and America a great service.


Anonymous said...

I really don’t see why we should be applauding Obama’s criteria for appointing judges. A judge that is overtly empathetic to one particular social group is likely to have his legal reasoning clouded by conflicting interests. If the judge is old, or black, or gay, or poor, and he or she encounters an appellant with similar background, empathy may dictate one ruling, while the text of the law may dictate another ruling. Why should the sexual preference, race, or age of a party enter into judicial calculation at all, especially if those qualities are not relevant to the case at hand? Judges should interpret the law without giving preferential treatment to those parties with which the judge can particularly empathize.

Also, simply because a judge is of a certain ‘diverse’ background, it does not follow that the judge will be free from “fundamentally subjective positions and a particularized standpoint draped in the cloak of ‘The Law’,” impervious to truth or reason. A black, gay, poor, and old judge is just as likely to be entrenched in subjective positions as is a white, straight, wealthy, middle aged judge. Legal qualification, intelligence, and non-partisanship should be the only qualities sought in judicial nominees. Diversity in the court, or the lack thereof, should be an irrelevant consideration in the appointment process.

PG said...

sigh ... I knew Obama's comment would be immediately misinterpreted as "I'm going to select only poor, African America, gay, disabled and/or old judges." While the "old" may not be difficult, it's hard to be "poor" on the six figure salary that any nominees (whether coming from the federal bench, state supreme court, Ivy League faculty, public interest organization or major law firm partnership) would have been earning. The only out gay federal judge of whom I know is Judge Batts of the SDNY (Radcliff/Harvard Law, Fordham law prof) -- who probably would make a wonderful justice but is unlikely to be on anyone's shortlist.

Empathy is commonly understood as the ability to put oneself into another's shoes precisely because it requires an imaginative leap. If I am myself poor, black, etc., WTF kind of imaginative leap is required for me to understand what it's like to be poor, black, etc.? I already know -- no empathy required!

What Obama was addressing was the tendency of some judges to evaluate all situations solely from their own socioeconomically, racially, sexually biased perspectives.

Take Potter Stewart in deciding Bowers v. Hardwick. He obsessed over the problem of public sex -- even though the facts of the case involved sodomy in the home, and the statute in question was not about public sex. Because his perception of gays was of furtive orgies in men's rooms that he was terrified he'd walk in on, those policy concerns informed his vote in the case and his decision.

I'm not a gay man, but I can imagine that if the law says my sex life is illegal wherever it occurs, I'm not going to risk having the cops invade my home and perp-walk me past my neighbors. So I look for sex in other places where, if I get caught, it's less likely that my community will know about it. If sex in my home is legal, however, I'm generally going to prefer having sex there rather than in a strange, dirty and dangerous locale.

Stewart, in contrast, had no such empathy for the situation of socially ostracized individuals. To him, the way to avoid public sex was to ban homosexual sex altogether. Never putting himself in the shoes of Bowers, he never thought through the logic of how a culture of sex outside the home came about for many homosexuals, or why it was smarter to encourage guys like Bower who were keeping it at home. There was no need for Stewart to be gay himself -- only for him to have some tiny clue about what being gay was like for those who were.

Similarly, the majority in Ledbetter failed to think through how one first has an inkling that perhaps one is being sex-discriminated against in the workplace. To my knowledge, none of the majority -- including Thomas -- has ever described any concern about having suffered workplace discrimination on any basis. (Having spent the decade prior to his DC Circuit appointment at the Office of Civil Rights and the EEOC, it would be rather ironic if Thomas had faced race discrimination.) So to them, discrimination is this thing other people deal with. They felt no need to think about whether one always spots discrimination instantaneously as soon as it occurs -- or if one first rationalizes it away and only later, as more evidence piles up, after accidentally seeing a co-worker's pay stub and realizing that he makes more money despite being less senior, does one realize that it really is occurring. I've never been discriminated against in the workplace, but I'm capable of imagining how someone in that position would want to think the best of her bosses and not be that fussy woman.

Empathy isn't just for the minority group. I can empathize with a genuine rape survivor's desire for anonymity in legal proceedings; I also can empathize with a falsely-accused defendant's desire for the same. The fundamental ability is to step out of one's own circumstances long enough to think "How does it feel to be --- ?" Anyone can do it -- it's just that some judges choose not to, and those are the judges Obama doesn't want.