With the nomination of Sonia Sotomayor to the Supreme Court, President Obama has reignited an old controversy over how judges should decide cases.
This debate has occupied legal theorists for two hundred years. For instance, Justice Oliver Wendell Holmes thought that the law should be separate from any ethics system. He famously stated that the law should be formulated so that it points a bad man, with no sense of right or wrong, in the right direction. To arrive at that kind of decision, judges must look no further than to the facts before them in rendering decisions and not to their own worldviews or precepts for "general propositions do not decide concrete cases", as Justice Holmes said in Lochner v. New York.
On the opposite side of the spectrum was Judge Jerome Frank who unlike Holmes, believed that a judge's emotions will always influence their decisions and that it is impossible for any judge to decide a case solely on the facts. According to Frank, judges make decisions based on their personal emotive experiences, or empathy as President Obama recently put it - even when they're not aware of it. According to Frank, the worldview of each judge guides their approach to every case, but only a few have attained the enlightened state of awareness of their unawareness.
And yet, every Supreme Court Justice takes an oath promising to "administer justice without respect to persons...faithfully and impartially." Those who subscribe to the Frank school of thought would have you believe that this pledge is nothing but a naïve goal and that cases can never be decided by a truly neutral decision-maker. Aside from the depressingly fatalistic aspect to this line of thinking, it also eliminates all personal responsibility from the judges making the calls. After all, if so few of us have reached that nirvana stage of awareness of our unawareness, how can we hold judges accountable for their decisions?
The answer is that the best approach to judging lies somewhere in between these two views. While we are all influenced by our emotions and our pasts, judges put aside their personal feelings and make decisions rooted in precedent every day. While the law may change as the world around us does, surely we can all agree that there should be some fundamental principles to guide us. These principles should be rooted in our Constitution, our legal process and traditions - it is a respect for these principles that Presidents should seek in Supreme Court Justices, not a vague, subjective quality like empathy.
Originally published on the American Issues Project Blog May 26, 2009.