And (A) Justice for All?

I recently completed service on a jury in a criminal trial, and emerged to the news of Obama’s selection of Judge Sonia Sotomayor for the nation’s highest court. Both of these events have me thinking anew about how gender and justice impact decision makers. When is acknowledgment of difference a sign of unwanted bias – and when does it provide valuable perspective?

In the case of juries, the attorneys for each side ask potential jurors questions to help elicit biases. They ask whether a juror – despite any known biases – can set aside those biases and make a decision based on the evidence in each case.

While the jury’s role is to determine the facts, by contrast, the role of a judge, particularly an appellate judge, is not to make credibility assessments. Rather, it is to determine what the law is – and yes, as loaded as Sotomayor’s statement to this effect has become, to “make the law” (by issuing decisions that interpret the statutes and create precedent for subsequent cases).

Of course, judges must also pay attention to facts, to determine which ones are legally significant. In other words, they must understand the real world context for their decisions.

As a juror, the question of whether I could set aside my prejudices triggered a surprising amount of self-reflection. But ultimately, as desperately as I would have liked to have been able to say “no, I can’t” (and thereby save myself a couple of days’ worth of inconvenience), I could not say that I was unable to apply the law fairly.

The point is, setting aside biases requires a degree of self-awareness. Yet Judge Sotomayor is being pilloried by opponents for acknowledging that she has biases from her life experiences, in statements such as this:

“I can and do aspire to be greater than the sum total of my experiences but I accept my limitations.” And, “I willingly accept that we who judge must not deny the differences resulting from experience and heritage, but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.”

Throughout the court system, there are all sorts of potential causes for bias that sometimes do, and sometimes do not get aired. Judges get distracted (apparently) by women lawyers who wear skirts that are too short, or by attorneys who are different in some way, such in the case of the Spokane jurors who used troubling terms invoking an attorney’s national origin. Jurors or witnesses could get distracted – or confused – if someone speaks with an accent. (In the case I heard, the defendant was Ukrainian, and though he did not use an interpreter, some of his witnesses did.) They notice other things about witnesses beyond their testimony – such as police officers who have tattoos, or the witness who forgot to remove the labels from a new jacket – and make judgments and assumptions based on such details.

Why do we trust jurors to set aside personal biases and decide cases based on the evidence* – but not judges? Could it be that Judge Sotomayor was simply being more honest than others have been about the sources of this thing she has, what Obama and the press are calling “empathy”?

These are the qualities that matter in a Justice: Honesty. Integrity. Intelligence. Openness. (You can read about what goes into the American Bar Association’s ratings here.) To these I would add, the self-awareness to identify personal biases – and the ability to either set them aside, as appropriate, OR to use them to understand, and “listen to,” the facts.

I too will be listening very carefully to hear how Judge Sotomayor answers questions at her confirmation hearing – listening to how she thinks, listening to whether this is a person who can understand what justice means to individuals and translate that into meaningful – and just – legal opinions.

* Granted, legal doctrines govern the admissibility of all sorts of evidence, including what types of evidence are legitimately related to assessing a witness’s credibility.