Judges Are People, Too.

The Supreme Court of the United States, with flag at half-staff in honor of Justice Ruth Bader Ginsburg (of blessed memory). Photo by the author.

Judges are not legal decision-making machines, nor do we want them to be. Former Supreme Court Justice Oliver Wendell Holmes taught that the fact that the language of legal decision-making is the language of logic only creates the illusion that law is like mathematics. In reality, there is no certainty in adjudication. There is seldom a hard-and-true criterion for determining whether a legal decision is fundamentally right or wrong like a mathematical formula. Ultimately, every judge uses their best judgment in arriving at a decision. And though many claim to want the repose of mathematics in law, there is a reason we have not considered developing a computer to take the place of judges by doing the sums of law and rendering decisions.

Whether we are conservative or liberal, Republican or Democrat, we all in fact want judges who not only know the law but have a sense of what is just; we want judges who not only are attentive to the facts of a case but who also have empathy for the people their rulings will impact; we want judges who not only will draw on the relevant precedent but who also will draw on their ingrained sense of right and wrong, their values, and, yes, their faith traditions; we want judges who not only look at the case before them but who also have an eye on how their decisions will apply to future unforeseen cases and on the wellbeing of the system as a whole.

As we watch the Supreme Court confirmation hearings, I think this is important to bear in mind. We should expect our senators not only to evaluate Judge Coney Barrett’s academic qualifications and credentials (i.e., her knowledge of and expertise in the law), but also her principles, perspectives, values, and judgment. We should be very skeptical of arguments that effectively equate the judicial process to Euclidian geometry, stripping it of its inherent subjectivity. Judgment both is and ought to be subjective. And we therefore have a right to know as much as possible about a prospective justice’s point of view, because those perspectives will invariably influence how they rule in cases that will impact us all.

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