Here is Jeff Sessions, Republican senator from Alabama, on Fox News, talking about the confirmation hearings for Judge Sonia Sotomayor (flabbergasting bits in boldface):
I think in the American system of justice, a judge takes an oath to be impartial between the rich and poor alike. She’s made a series of speeches that are extraordinarily troubling to me, just flabbergasting, really, over a decade, in which she says that a judge’s own personal feelings and background, even their prejudices and sympathy will affect how they rule. And to me that is unacceptable. It’s also consistent with the liberal activist view of the judiciary that judges can push the law and there’s no real firm meaning in the law—she’s made words to that effect—which suggests that they feel then free to make it say what they would like it to say, to effect a policy they believe in.
. . .
We need to know that this nominee is going to be fair, that will give each party a just day in court, and if not, if they can’t convince this committee, every senator, that she believes she must set aside her biases, her background, her prejudices, her sympathies and give objective judgments to each party before the court, they should not be confirmed.
The senator’s confusing misuse of pronouns (who exactly is “they” in that last sentence?) can be forgiven as a product of having to speak extemporaneously under the bright lights of a television studio. But how can he keep a straight face and claim to be flabbergasted that “a judge’s own personal feelings and background, even their prejudices and sympathy will affect how they rule”? Someone who used to be a practicing attorney should know better.
It’s hard to tell whether the senator is just playing politics or whether he really does have a tin ear for human nature. Either way, I’m not impressed.
Judges are human, which means they come with personal feelings, background, prejudices, and sympathies. It also means they are, probably by definition, incapable of being “objective.” But the messy humanity and natural subjectivity of judges is not an evil.
The law often is indeterminate, especially in cases that make it all the way to the United States Supreme Court. Even in the local superior court I have seen a surprising number of disputes where the law was, in my opinion, indeterminate. In those cases, a robot judge without feelings, background, prejudices, or sympathies would be useless. “Sorry, folks. No decision today, but thanks for filing. You’ll just have to fight this one out among yourselves. Better luck next time.”
We need judges to have a little messy humanity, partly because the law is written in words, which every writer knows are deceptively slippery when you try to say something clearly and unambiguously. The law is also written by people, for people, whose ideas about what should happen in court are hardly a rock of consistency. As I wrote a couple months ago:
Most people want justice for themselves, but they want the law applied to others. Law simplifies reality. Law says, “You can consider these things, but not those things.” But justice requires you to think about all those other things. We’re all intimately familiar with the mitigating factors that should result in justice for ourselves, but for others, we want everything simplified. You stole a loaf of bread? Criminal conviction for you! Don’t tell me why. Don’t tell me your family was starving. That doesn’t matter. Irrelevant! But if I stole a loaf of bread? Please, let me explain!
People often have different ideas about the best outcome in a dispute, but even when they agree that the law should govern, instead of their personal sense of fairness, the law may not provide as clear an answer as the one they desire. When things are not clear, when the law does not provide an answer, the judge needs to be able to fall back on the foundation of his or her humanity. That’s probably why 24-year-old law school graduates with no experience, even the technically brilliant ones, are not appointed to the bench. Intuition is the human key to overcoming legal indeterminacy—and that requires experience and background, which inevitably includes prejudices and sympathies.
Senator Jeff Sessions, who is an attorney admitted to the bar of the State of Alabama (and a onetime failed nominee to the federal bench), ought to know and understand all this. That’s why I wonder if he is just playing politics and pandering to constituents who don’t know better. But while that may be politically expedient, and maybe even fine for a senator who is not an attorney, it strikes me as wholly inappropriate for a person admitted to practice law. As someone with “insider” knowledge about the legal system in a prominent position within a society where most people are woefully ignorant about that legal system, senator Sessions ought to use his position to educate people about the court system. Instead, he goes on Fox News and says he’s shocked—shocked!—that judges are human beings whose personal baggage influences their decisions. Please.
Yes, judges should always strive to impartiality, and almost all of them do. (And the ones that don’t are probably in danger of losing their jobs.) But having background, prejudices, and sympathies is not the same thing as being partial, and they will never achieve untainted objectivity or leave their humanity behind when they take the bench anyway.
Complaining about “liberal activist” judges is an easy sport. Recognizing the complexity of law and the problems of actually judging real cases is much more difficult. Cultivating that understanding may not be helpful to the aspirations of an individual politician, but it would definitely be helpful to the betterment of society as a whole. A nation filled with people running around half-cocked with a bunch of simplistic ideas about the fundamental mechanisms of law—the glue that holds their society together—will have a hard time rising above petty squabbles to solve real problems.
Senator Sessions and other “insiders” to the legal system should spend more time trying to explain how our courts work and why and less time leading people along by the nose to shore up their own political power.