Are judges losing the art of being persuaded?
A job ad that I don’t want to see
If you heard a pitch for a reality TV game show called Who is the Next Top Judge, would you watch? The pitch might be something like: self-serving, partisan, power-hungry politicians fight over which lower court judge will get a top job based on how the candidate has stated he/she/they will decide future, highly-contentious cases according to a defined ideology.
Whatever happened to judicial impartiality?
The debate about filling the vacant seat on the US Supreme Court raises a bigger issue than whether an outgoing President should/should not appoint a judge, whether courts are/are not too powerful and judges are too/not enough activist.
Let’s assume that all the candidates are qualified for the job, have extraordinary resumes, and are suitable to be high court judges.
Even so, the person selected knows that promotion is based on sharing an ideology. One person got the nod over all the potential judges because of alignment with the politics of the party in power and the base it panders to.
If the person is highly qualified, does promising ideological alignment matter?
It does matter, yes.
To answer ‘no’ means a judge can assist the victory of one worldview, position or ideology before a case is even heard in court.
No one should expect neutrality
Every human has values, beliefs, concerns, and a worldview. Judges are expected know their biases and moderate theirs for the good of all and the oath they take.
Google shares this sample oath of office (modified):
Each justice or judge shall swear or affirm before performing the duties of his/her/their office: “I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the country.”
This is the opposite of judges assuring one segment of the public that, once elevated to the bench, the judge can be counted on to please that one segment of the public.
It’s real life in real time, not a made-for-TV production
I tried to ignore the ugliness of the debate, really, I did. When I couldn’t look away, I reframed it as a conflict analysis of the assumptions and context of the disagreement.
Assumption about the role of a judge
A judge is a person who lives in the world, albeit a person who has decision making power over other people, institutions, governments and litigants. The judge hears the arguments of all the parties and decides.
Context for the attributes of a judge
To preserve freedoms, we the people need to trust that the judicial system works and deserves our respect. It is reasonable to expect a judge’s decision be fair, equitable, and based on the evidence, the facts and the law.
A judge should be:
- learned in the law,
- fair and open-minded,
- gifted in the skill of listening to all the parties’ facts and arguments,
- able to ask impartial questions for clarity and to elicit meanings,
- thoughtful in considering the context in which the parties came to an impasse,
- insightful in recognizing inequality, and
- timely in rendering reasoned judgment after consideration of all relevant Information.
The role of a judge and the attributes of judgeship support and reinforce each other
Without this relationship between roles and attributes, judges who owe their position to their fixed adherence to an ideology support the ideology no matter the quality of the evidence.
In my conflict management practice, I’ve witnessed people persuaded to change their minds from strongly held positions. I hope that is true even of judges chosen for their strongly held and publicly stated beliefs.
Hi Deborah I have been thinking about your analysis, especially after watching last night’s VP debate. The point about expecting neutrality is so important and challenging. It seems that judges (also true in Canada for both judges and the selection of senators?) for senior roles in the US are appointed first based on the inflexibility of their political and ideological views, rather than any of the other criteria.
Perhaps the ability to be persuaded is seen as a disqualification rather than a qualification. And I see the same hardening of belief/opinion in myself and in many of my friends and in people I meet randomly. Eg a discussion earlier this week of the City of Calgary’s proposal to change the standard residential speed limit from 50 km to 40km/hour.
Thanks for sharing your article.
Hello, those are great insights about the hardening of beliefs and opinions. It goes towards explaining two modern ills that have been identified.
1. That we listen in echo chambers and don’t explore opinions that differ from our own pre-existing beliefs.
2. The divisiveness in politics that make it hard for our leaders to compromise or even govern.
We can’t expect total neutrality in ourselves or others since we all have preferences. As you point out, it becomes a problem when it hardens into only accepting our own preferences. Then judicial impartiality is challenged.