June 10, 2009
Experience Helps Judgment—And Judges—A Commentary by Sam Berger ’10
The following commentary was published in The Hartford Courant on June 10, 2009.
Experience Helps Judgment—And Judges
By Sam Berger ’10
President Barack Obama's nomination of Judge Sonia Sotomayor to the U.S. Supreme Court has brought predictably negative responses from his opponents. She has been called an affirmative action choice and unqualified for the post, despite impressive professional credentials. But these ludicrous attacks reflect more than just the general nastiness of the confirmation process; they show a confused understanding of diversity and its importance to the judiciary.
To call Judge Sotomayor an affirmative action choice is to identify her solely as a Latina or a woman, the same kind of narrow mind-set that led Republicans to think they could woo women and black voters with Sarah Palin and Michael Steele. Diversity on the bench is not about racial or gender quotas, but a diverse set of life experiences and perspectives.
That's why diversity is so important to an effective judiciary, to ensure that a variety of viewpoints contribute to our understanding and application of the law. Determining the meaning of abstract legal notions such as due process or equal protection in a real-world situation requires judges to exercise, well, judgment. To do so, judges frequently draw on their personal experience of the world and how it works.
Of course, judges are constrained in their judgments by the law, but the application of the law isn't always so clear in a given instance. So one might expect, as Judge Sotomayor inartfully suggested in a 2001 speech, that a Latina woman would have a different, and perhaps more nuanced, perspective on gender and race discrimination than a white man who had never experienced either.
A hundred years ago, judges were looked upon as neutral arbiters who straightforwardly applied legal rules. As the rapidly industrializing world began to change, however, people increasingly saw the judiciary as mired in legal formalisms and preconceptions that benefited the powerful at the expense of the public. Progressives reshaped our conception of the law, arguing that legal interpretation could not be entirely divorced from judges' values and experiences.
In the past 30 years, however, we have seen a return to the mythical view of the neutral judge. A series of conservative judicial nominees have promised to simply apply the law, culminating in Chief Justice John Roberts' claim during his confirmation hearing that judges should act like umpires. Yet despite such promises, these conservative judges have consistently interpreted the law to achieve conservative results.
This is not to suggest these judges intentionally misled the public, but only that legal reasoning isn't calling balls and strikes. Judges apply general rules to the messiness of the real world, and their understanding of how to apply those rules is influenced by their experiences — a conservative worldview will lead to conservative judicial rulings.
A diverse, representative judiciary is a better judiciary, one whose rulings will more closely reflect our shared values. But we need more than racial, gender or political diversity: We need a diversity of life experience. We should have more judges who have run a business or run for office, who have been district court judges or have worked in the legislature. The more viewpoints, the more likely our laws will keep pace with our lives.
And judges should explain their worldview during their confirmation, so we can understand what will influence their decisions. Balancing personal viewpoints with the rule of law is no easy task. But in that same 2001 speech, Judge Sotomayor suggested her approach: "I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate."
Good judgment, indeed.
Sam Berger, 26, of Amherst, N.Y., is a third-year student Yale Law School.