In the monthly "Ethical Inquiry" series, we examine ethical questions, highlighting a broad array of opinion from journalism, academia, and advocacy organizations. Our intent is to illuminate and explore the complexity of some of the most vexing ethical questions of our time.

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Ethical Inquiry: July 2009

The Personal and the Judicial: Should Identity Affect Legal Decisions?

sotomayorShortly after President Barack Obama nominated U.S. Court of Appeals Judge Sonia Sotomayor to the U.S. Supreme Court, attention turned to a speech she gave in 2001, in which she said that “our gender and national origins may and will make a difference in our judging.” She added: “I 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.”

The speech angered critics, who argued that Sotomayor would privilege life experience over the law in making decisions. Others contended that all judges, regardless of their background, are influenced by personal experience. Indeed, Supreme Court Justice Ruth Bader Ginsburg raised this issue when she spoke about the recent case Redding v. Safford Unified School District, which involved a 13-year-old girl who had been strip-searched by Arizona school officials looking for drugs. In reference to her all-male fellow justices’ comments during oral arguments, Ginsburg told USA Today: “They have never been a 13-year-old girl. It's a very sensitive age for a girl. I didn't think that my colleagues, some of them, quite understood.”

Should life experience and empathy – a quality Obama said that he sought in a nominee for the highest court – influence a judge’s decision on the bench? Is it ethical for judges to consider their own personal identity when determining the outcome of a case? Is it possible not to consider it? The following commentary addresses the issue of judicial identity and decision making, this month’s ethical inquiry:

The New York Times explores the issue raised by Ginsburg, in an article on whether female judges bring a different perspective to the bench than their male counterparts.

A study from the Yale Law Journal (excerpted here) determined that the presence of female judges affects cases in which gender issues are involved, such as sexual harassment and sex discrimination.

Another study, published in the Boston College Law Review, finds that judges improperly dismiss cases based on their own view of evidence rather than by the legal standard of whether a reasonable jury could find for the plaintiff based on the evidence. “Judges are using their own opinions to decide cases, and their opinions are shaped by their background,” writes the author, University of Illinois College of Law Professor Suja A. Thomas. “So background really matters, from their experiences to where they grew up.”

On the subject of judicial bias, Robert Alt, a former professor at Case Western University in Cleveland and a senior legal fellow and deputy director of the Center for Legal and Judicial Studies at the Heritage Foundation, voices his concern over judges, like Sotomayor, who he says allow personal bias to affect their rulings. “Their job is not to choose the best policy or decide who they would like to win the case, but to apply the law evenly, as it is written, even if they happen to disagree with it or have greater affinity for one of the parties,” he writes for McClatchy Newspapers.

In the article, Alt cites a survey commissioned by the Federalist Society, which found that 64 percent versus 24 percent of respondents preferred judges who “believe that their roles as judges is solely to evaluate whether a law or lower court ruling is in line with the constitution” rather than those who “believe that their roles as judges is not simply to review the law as it is written and not take into account their own viewpoints and experiences.”

Other commentators have rebutted the notion that the best judges decide cases based on a pure reading of the law, unaffected by their own viewpoints and experiences. Sherrilyn Ifill, a professor of law at the University of Maryland School of Law, writes on “Unlike so many judges who by virtue of being white and male simply assume their impartiality, Judge Sotomayor recognizes that all judges are affected by their background and their life experiences.” Legal correspondent Dalia Lithwick writes in Newsweek that it’s a losing strategy to attack Sotomayor for being too “human.” Sotomayor, she writes, “merely believes that different judges make a difference in judging. And if you strip away all the rage of the identity politics wars, that point is irrefutable.”

Jeffrey Toobin in The New Yorker looks at the history of nominations to the Supreme Court that were made to ensure diversity, including choosing judges from different regions of the country and of specific religions, such as filling a “Catholic seat” or a “Jewish seat.”

judges thinkJudges themselves have considered the factors that influence members of their profession. In the book How Judges Think, U.S. Court of Appeals Judge Richard Posner says that judges decide some cases through their own experience, emotions, and often unconscious beliefs. In an article called “The Judge Confronts Himself as Judge,” Gil Carlos Rodriguez Iglesias, a former president of the European Court of Justice and a participant in the Brandeis Institute for International Judges, reflects on “a perceived modification of a judge’s role – away from the traditional model of ‘oracle of the law.’”

cardozoFinally, Benjamin Cardozo, a justice on the Supreme Court from 1932 to 1938, offered his thoughts on judicial objectivity and the forces that come into play when judges make decision, in a series of lectures compiled in the book The Nature of the Judicial Process:

“There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them – inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs. ... In this mental background every problem finds it setting. We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own. ... Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the [person], whether [he or she] be litigant or judge.”


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