Umpires, empathy, and activism: lessons from Judge Cardozo.

• Author: Wardlaw, Kim McLane

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. (1)

INTRODUCTION

Our national dialogue about the role of federal judges in our democratic society has devolved into a political game in which points are awarded to whomever can reduce the complexities of judging into the most oft-repeated sound bites. (2) Lawmakers on both sides of the aisle deride the opposing party's judicial nominees as activists and extremists whose personal prejudices override their allegiances to the rule of law. (3) Though much of the rhetoric about judges and judging has proven politically expedient for the politicians and interest groups engaged in judicial confirmation fights, it has been a disservice to the American public and the federal judiciary. Oversimplified talking points and buzzwords hardly explain what judges actually do, or, more importantly, what we should expect of them. (4)

Two talking points have gained special traction. One is that judges should be nothing more than neutral umpires. For example, during Chief Justice John Roberts's confirmation hearings, he promised to "remember that it's my job to call balls and strikes." (5) From Capitol Hill to cable news, the analogy took hold as shorthand for the idea that administering justice is a purely objective task, one in which life experiences and personal conceptions of justice play no role. Despite, or perhaps because of, its simplicity, the judge-as-umpire construct gained political popularity and became an indispensible page in the confirmation playbook. (6)

A second, oft-repeated talking point is that empathetic judges are dangerous, activist judges. No sooner had President Barack Obama uttered the word "empathy" in connection with judicial appointments than the word took on a life of its own. (7) It became a code word for judicial overreaching, and it served as the blank slate onto which politicians painted doomsday scenarios of a judiciary run amok. That one word became so politically charged that Supreme Court nominee Sonia Sotomayor went on record as distancing herself from the approach to judging espoused by the President. (8)

I would like to step back from today's political rhetoric about the role of judges and the nature of judging. Far back. Back to 1921, when then-Judge, and eventual Supreme Court Justice, Benjamin Cardozo delivered a series of influential lectures on judges' decisionmaking processes. (9) Judge Cardozo's writings are widely--and properly--regarded as authoritative on this subject. (10) He effectively discredited the legal formalists' view of the law as a closed system of preordained rules that were logically to be discovered and mechanically to be applied. (11) Notre Dame Law School is to be commended for hosting a colloquium to remind us of Judge Cardozo's rightful place at the fore of our modern discussions about the judicial function and for encouraging us to reflect meaningfully on the role of judges in our democratic system.

Judge Cardozo recognized that the law is not always a strike zone; that the facts of life are not always pitches; and that judges are not always umpires making objective calls between balls and strikes. He acknowledged that there are some areas in which the law is unclear or undeveloped and others in which reasonable jurists will disagree about its proper application to the facts. (12) In these areas of the law, where much appellate litigation and most Supreme Court litigation takes place, judges must exercise judgment and discretion. Yet the judge-as-umpire construct, as recently deployed in political debate, fails to recognize the existence of either judgment or discretion.

Only after we acknowledge that complications do exist within the law--that the act of judging defies simple metaphors and labels--may we engage in a serious discussion about what should be expected of our judges. Time and again, Judge Cardozo acknowledged that judges should be true to their sense of justice, shaped as it is by their own life experiences. It is as unrealistic as it is unwise to expect our judges to shed their humanity when they don their robes. Life experiences facilitate judges' ability to appreciate the problems of the people on whose behalf they administer justice. The questions before our courts are too important and too complex to be addressed from a singular vantage point, and it is incumbent upon the judge to understand the views of others.

Judge Cardozo's recognition that one's life experiences and sentiments of justice come to bear on the act of judging did not, by any means, render him an "activist." To the contrary, he emphasized that our judges should be modest, ever vigilant of their role as public servants operating within the confines of the constitutional structure of which they share stewardship. He was as honest and candid in discussing his approach to judging as he was restrained in his view of the judge's role in our democracy. His example undermines the politically popular assertion that empathy and activism are one and the same.

"There has been a certain lack of candor," Judge Cardozo wrote, "in much of the discussion of the theme [of judges' humanity], or rather perhaps in the refusal to discuss it, as if judges must lose respect and confidence by the reminder that they are subject to human limitations." (13) That a judge is a fellow citizen, whose sense of justice is informed by his life experiences, should be embraced, not ignored--or, worse, chastised--especially when those life experiences facilitate one's ability to understand the circumstances of others.

1. UMPIRES

   In some cases, the judge-as-umpire construct works. If the factual circumstances of the case are undisputed and clearly addressed by an applicable rule, the disposition of the case requires little more than application of the law to the facts. A swing and a miss is a strike, and the umpire lacks discretion to call it otherwise. (14) "[T]he controversy relates most often not to the law, but to the facts," Judge Cardozo wrote, "In countless litigations, the law is so clear that judges have no discretion." (15) Both the plaintiff and the defendant are residents of California; diversity jurisdiction does not lie if the plaintiff and defendant come from the same state; therefore, there is no diversity jurisdiction. (16) My daughter is a teenager; the Constitution requires that the President be at least thirty-five years old; (17) therefore, my daughter cannot now be President. Where "the rule of constitution or of statute is clear, ... the difficulties vanish." (18)

   Nor is there much difficulty in the vast majority of cases that are controlled by precedent. Judge Cardozo observed that most of these cases "could not, with semblance of reason, be decided in any way but one [because] [t]he law and its application alike are plain." (19) Granted, the judge's function can be more difficult in these cases than in those governed by clear commands from legal texts. The judge must reason by analogy, comparing the facts and legal claims in the case before him to the facts and legal claims of previously decided cases. Only if the former are sufficiently close in kind to the latter will the precedent govern. As Judge Cardozo put it: "It is a process of search, comparison, and little more. Some judges seldom get beyond that process in any case. Their notion of their duty is to match the colors of the case at hand against the colors of many sample cases spread out upon their desk." (20) Thus, reasoning by analogy to precedent requires some discretion, but not much.

   If all cases fit this mold--if the act of judging were always a non-discretionary task--one would not expect to find much disagreement among judges. If the dispensation of justice were truly robotic, judges tasked with reviewing their colleagues' work would perform quality control--checking for the defective product that somehow made its way down the assembly line--and little more. (21) Genuine, substantive disputes about the law would be the utmost rarity. But, in the Supreme Court, dissenting opinions are the norm, not the exception, and cases are almost as likely to be decided by the narrowest of 5-4 or 6-3 margins as they are to be decided unanimously. (22) Splits in authority often emerge among the Circuit Courts of Appeals, which reach conflicting conclusions on nearly identical legal questions. (23) On the Ninth Circuit Court of Appeals, good faith disagreements among my colleagues result in a robust en banc workload. (24) Meanwhile, the reasoned decisions of district court judges are reversed thousands of times every year. (25) "It happens again and gain, Judge Cardozo observed, "where the question is a close one, that a case which one week is decided one way might be decided another way the next if it were then heard for the first time [by a different panel of judges]." (26) It is not "a new, a partisan, or a particularly radical idea that different judges judge differently." (27) It is, instead, an idea that is borne out by experience.

   "It is when the colors do not match," Judge Cardozo wrote, "when the references in the index fail, when there is no decisive precedent, that the serious business of the judge begins." (28) As Judge Cardozo recognized, questions arise for which the legal authority carries the judge to a point just short of his final destination. What then? It is here that the judge-as-umpire construct is not only useless but is counterproductive for judges and damaging to the process by which they are selected. (29) The judge-as-umpire construct establishes a false choice between the judge who calls balls and strikes, and nothing more, and the activist judge who behaves extrajudiciously. The choice is false because the law often explicitly assigns the judge a role more sophisticated than that of umpire: It empowers the judge to "say what the law is," (30) and it entrusts the judge to...