May 7, 2019 • 39 mins
Judges now want us to know they’re human. But maybe we’d be better off if we didn’t know.
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Speaker 1 (00:15):
Pushkin. One of the cooler things that happened in the
last few decades is that scientists have decided that emotions
are worth studying, and they found new ways to study them,
not just in people, also in animals. The guy who's
taken the lead with the animals is a Dutch primatologist
(00:37):
named Franz Dawal. You know, emotions are sort of taboo topic.
They used to be, at least, and so most of
the time we don't explicitly discuss them. We discussed the
behavior that they produce, but not the emotions themselves. That's
Dwall himself. He's Dutch but works in Atlanta at Emory University.
(00:59):
When he started out, no one thought you could study
the emotions of animals. A lot of people just assumed
that animals didn't have emotions and scientists shouldn't care if
they did, but not supposed to talk about mental states
or feelings or planning or thoughts or whatever. And so
there was a taboo for one hundred years on talking
(01:20):
about that. And it's only in the last twenty years
or so that taboos being lifted, and that the more
and more scientists are open about internal states, meaning emotions.
They so clearly drive behavior in both animals and people,
which brings me to Professor the Wall's most famous experiment.
(01:40):
I worked with capuccin monkeys for a long time. We
noticed in our lap that the monkeys were always very
keenly watching what somebody else would get, not just what
they themselves get for a task, but also what somebody
else is getting. So the final experiment that I want
to mention to you is our fairness study. This is
the Wall's ted talk about that experiment. Two monkeys in
(02:03):
cages side by side. The cages are plexiglass, so the
monkey can see each other and the scientist. They're given
treats for performing a task. The task is to take
a rock from a researcher and hand it back to her.
It doesn't sound so hard, but then you're not a monkey.
(02:23):
The treat is a slice of cucumber. And if you
give both of them cucumber for the task, the two
monkeys side beside, they're perfectly willing to do this twenty
five times in a row. So cucumber, even though it's
really only water in my opinion, but cucumber is perfectly
fine for them, perfectly fine. But then a few rounds in.
(02:44):
One of the monkeys hands back the rock, and the
researcher gives that monkey a grape, not a cucumber. Monkeys
really like grapes, and the other one sees that The
other monkey stares. She waits her turn. She gets the
rock and hands it back, gets again cucumber. She looks
back and forth between the cucumber and the other monkey.
(03:09):
She just chucked the cucumber back at the researcher. Then
she goes ape shit. The researcher keeps giving grapes to
one monkey and cucumbers to the other. She tests a
rock now against the wall if she needs to give
it to us, and gets cucumber again. The monkey that
(03:31):
gets cucumber explodes in anger, climbing the walls of the cage,
throwing whatever she can get her paws on at the researcher.
So this is basically the Wall Street protest that you
see here. At some deep level, monkeys expect life to
be fair, and so do we. The human sense of
(03:53):
fairness is not just some sort of mental product some
sort of countient philosopher would say. Is that it's a
principle that we have arrived at by reasoning and logic
or something like that. No, no, there's there's a real
emotion behind it. And that's why the behind all these
moral principles that we have. This experiment isn't just about unfairness.
(04:17):
To have any effect at all, the unfairness has to
be out in the open. The monkey getting the cucumber
needs to see the monkey getting the grape. So it's
also about the relationship between transparency and unfairness. I sometimes
wonder what would happen if people ever got to see
(04:37):
all the unfairness in life, if say, some magical new
technology came along that generally increase the transparency in the world.
Oh wait, it just did. My name is Michael Lewis,
and this is against the rules. I show about the
(04:58):
decline of the human referee in American life and what
that's doing to our idea of fairness. I was talking
the other day with a woman named Musa sever She'd
grown up in Slovenia when it was part of Yugoslavia,
(05:22):
and she was there in the nineteen nineties when Yugoslavia
fell apart. Hundreds of thousands were killed, millions more persecuted.
Musa escaped, but with the new conviction that nothing was
more important than the rule of law. Justice. She wanted
everyone everywhere to have it. In two thousand and three,
(05:44):
she moved to Uzbekistan. Uzbekistan was not an obvious upgrade
on Slovenia, even at its most terrifying. Well, they had
a pretty nice constitution, but that was mainly on the paper.
Security services were controlling everything. A group called Freedom House
(06:06):
had sent Musa to document what was happening in Uzbeka
stands prisons. The prisons had become the Uzbek government's torture chambers.
They had cattle prods and rooms where they hung you
from your wrists and ankles, other rooms where they beat
you with robber hoses and smothered you with plastic bags,
all done in total secrecy, just like the trials that
(06:28):
had sent people to prison in the first place. And
what about the judges in the courtroom, where the judges
were kind of independence? Did they have? No? No, no no.
That was the old legacy of the Soviet system made
prosecutors totally in charge of everything. The government. Prosecutors were
(06:51):
in charge. The judges had zero power. They just took
orders from the prosecutors. The orders were simple. Any person
who gets arrested is guilty. As soon as you did
something that got the police to arrest, that was it.
You couldn't get out. Can you just describe like you're
(07:13):
describing to a child, would it felt like to live
in that system? Well, one person didn't matter. You didn't
matter at all. So the only way how people tried
to preserve their safety was they didn't stick out in
any way. People had to stay hidden. Not because the
(07:37):
Uzbeks didn't have any laws. They had their nice little constitution.
What they lacked was an idea at the center of
any system of justice, the independent judge, the ref in robes,
the human being charged with ensuring fairness in the court
of law. When you live in a country that doesn't
(07:59):
have people like that, you wake up every day to
the same emotion. Fear that there was always fearing, Yeah,
fear that if you don't do what the state wants
you to do, they could eliminate you. The Uzbeks didn't
invent the police state. They were just more enthusiastic about
it than most. But in two thousand and sixteen something changed.
(08:23):
Muy the president died. That was his funeral. He was
the only president that Uzbekistan had ever had, And the
new president decided amazingly and without any great revolution, to
open things up, to create basically from scratch, a legal
(08:47):
system that included some concept of fairness in practice that
meant handing actual power to the people who'd never had
any The judges the refs, which sounds like it should
be easy for the judges, right, You don't really think
of them having to learn how to be independent. It's
(09:08):
like breathing. You do it so long as you're allowed to.
It turns out that's wrong. The younger ones are those
usually to make a decision on acquittals and try to
do things right. The older ones are still they find
it hard. So if you're a defendant and you walk
(09:28):
into a courtroom and you see a young judge, you're
happier than if you see an old judge. Yeah, definitely,
because only the new judges will acquit you. The old
guys will still assume you're supposed to be sent directly
to jail. It's as if they don't want their independence,
or as if the Uzbek system doesn't know how to
(09:49):
grant it to them. The Uzbeks have done all kinds
of things to get the changes to work. They've invited
American judges to visit to teach them about judicial independence.
They've opened their courtrooms so people can watch the trials.
Musa had this idea of staging mock trials so that
the old guys could see what fairness looked like. So
(10:11):
we had two trials. On both trials that defense won
the case. That was such a shock the team of prosecutors,
and they sent us the best. Didn't you even want
to shake the hands with the team of defense. They
were so pieced off, and they would be asking what
(10:33):
happens to American prosecutor when he loses a case? Does
he lose a job? Is he punished? They were an
undefeated team up to that point. Yes, they never lost.
They never lost because they were not supposed to lose.
They're not supposed to lose, right, Changing those attitudes must
not be easy. It's not easy, and you know that's
(10:56):
why I'm there fifteen years. All of which is to
say that a system of justice isn't just a bunch
of laws. A system of justice lives and dies on
the emotion it evokes, especially feelings about the judges, and
the judges feelings about their role. So here's what happens.
(11:17):
We're in front of a very hostile judge. The judge
was appointed by Barack Obama, federal judge. These feelings can change.
They're changing right here, right now, because he's given us
ruling after ruling after ruling, negative, negative, negative. The uzbeks
(11:37):
have picked a funny moment to emulate the American system
of justice. They want transparency, they want the people to
see the judges at work. At the same time, Americans
are being encouraged to watch their judges more closely than ever,
and what they see is causing some problems. So I
(12:05):
walked in, and I mean, I think, I think I
look younger than I am anyway, and so I think,
you know, I think, you know, I thought a lot
of people just assumed guy was, you know, in my
early twenties or something. You know, this is Jeremy Fogel.
He was once a judge, but not just any judge.
A judge you had a gift for watching himself on
the job. Presiding judge gave me a file and say
(12:26):
here's your first case. The jury's coming in half an
hour or something like that. This podcast was bound to
lead to judges. They're too important to ignore, but they
usually don't have much to say for themselves. By law,
they're forbidden from discussing their cases. By custom, they don't
typically invite you to get to know them. That's why
(12:49):
I've come to Jeremy Fogel. He's decided that judges have
no choice but to break their silence because they're being
watched in new ways, and he's sort of taking the lead.
Fogel was always a little odd for a judge. He
went to college during the Vietnam War. He'd studied religion
and wanted to become a professor, but the war or
(13:09):
switched on something inside of him made him want to
do something practical out in the world. I just felt
like an academic life was going to be too cloistered,
so law school was kind of something I did, almost
as an afterthought. He became a public defender, taking the
cases of people who couldn't afford a lawyer. He saw
(13:32):
the unfairness of the system, the crazy inequality, the likelihood
that it would treat a poor person less fairly than
a rich person. Jeremy was doing what he could directify that,
but he sensed that he had this thing about him
that made him less than ideal for the job. You
can't be the one sided advocate where you you just
kind of go in and say, well, you know, my
(13:54):
client's entirely right and these people are entirely wrong. I
never felt comfortable doing that. He didn't like taking sides,
which is a problem if you're a lawyer. You know,
there's there's lawyers who actually believe their clients cases totally right.
Then there's people who know that it isn't but they
can play the role. And I wasn't ever really that
(14:14):
comfortable playing the role at the same time. I mean,
I was aware of my ethical obligations were and so
I started to think about, well if you what if
I were a neutral? A neutral we know now how
hard they are to find others who knew. Jeremy Fogel
had the same thought. In nineteen eighty six, Fogel was
appointed to be a California state judge. It nerve wracking. Well,
(14:37):
I was really nervous, you know, I didn't know what
to expect. And no, I don't think I don't I
know think I ever hit the gavel in my life.
But but but I just I was never in a
I was never in a mood where I felt like
I needed to do that. He wound up running a
family court without ever once using his gavel. He presided
over divorces and custody battles. It was emotional, angry, ugly.
(15:01):
If a judge had some perverse desire to be murdered
by the people in his courtroom, he'd ask for family
court duty. Most judges dislike family cord because it's the
hot zone. Jeremy Fogel didn't just like it. He loved it.
You know, you have people who are quote normal most
of the time, who when they're in the middle of
the divorce or not temporarily, they're temporarily insane. Right, So
(15:25):
the ability to kind of step in and bring a
little bit of order to the situation actually was something
I felt very positive about. And how did you do that?
I mean, I think a lot of it was just
just listening and trying to figure out what's really going on.
And you know, they're fighting about who gets the dog.
You know, they're fighting about who gets the piano or
(15:46):
you knows, And I just said, it's not about the piano,
you know, this is this is a power struggle, you know.
So I would say parties, I would bring them in
for mediations. They would talk to me about this, you know,
and so you know, you would kind of dig down
and you could sort of see what the underlying problem was,
and then you could say, well, how are we gonna
how are we going to move forward here? You know,
(16:06):
how are we going to get you folks divorce? Because
that's really what needs to happen. Right, you're getting a
feel for him. A born neutral, some people just are.
Jeremy Fogel thinks he caught the trait from growing up
with a volatile father, from wanting life at home to
just calm him down anyway. Judging suits him. In nineteen
ninety seven, Bill Clinton appoints him to the United States
(16:28):
Court for the District of Northern California. It's the big time.
He goes from being one of tens of thousands of
state judges to one of only two thousand federal judges.
He's got life tenure in this job that he totally loves.
But now he's noticing things and they're pulling him outside
of himself, causing him to watch himself meta judging. And
(16:52):
it's actually really hard to be humble when you're a
judge because the the everybody's countown to you. You're you're,
you're wearing the robe, and you're on the bench, and
everybody's you know, calling you your honor and they're you know,
there's there's a lot of false deference. I think a
judge you can make huge mistakes and still fool himself
into thinking that he was doing great. Jeremy Fogel tried
(17:15):
to fight this tendency by not allowing himself to forget
his most terrible mistakes. I mean, the one that always
comes to mind was when I was doing the Mantle
Health calendar and this young man was trying to get
off of conservativeship, and the doctors were saying, no, he's
managed depressive and he would be dangerous to himself, and
(17:36):
he persuaded me that he was okay, and he killed
himself the next day. Judging forces you to make these
horrible life and death decisions when you really don't know
the right answer. Jeremy Fogel knows that he's going to
be wrong sometimes, and so he thinks it's important for
the people on the receiving end of his judgments to
sense his humility, his humanity. He thinks judges need to
(17:59):
be not as book smart, but people smart, so that
people who leave their courtroom feel okay with what's just happened.
We need a curriculum. You need to be intentional about
what we're teaching judges. What kind of judges are we
trying to grow? You know, the longer Jeremy Foggle is
a judge, the more worried he becomes about the relationship
(18:21):
between Americans and their judges. He's right to be worried.
American judges are being threatened and challenged and exposed as
never before. You to say, Senator, I would like to
start by saying, unequivocally, uncategorically that I deny each and
(18:42):
every single allegation against me today that suggested in any
way that I had conversations of a sexual nature or
about pornographic material with Anita Hill. Supreme Court confirmation battles.
They're now just a ritual in American culture, but they
(19:04):
have echoes in the daily lives of ordinary judges. Political
attacks on jeg are on the rise, Physical attacks on
judges are on the rise, and there's this new demand
that judges reveal more and more of themselves in their
lives to us. When I was started writing the norm
was still for the justices not to grant many, if any,
(19:25):
on the record interviews, And in fact, the Supreme Court
at that time didn't even publish transcripts of the arguments
on the same day, and they would just refer to
the court rather than an individual justice. That's how impersonal
the whole thing was supposed to be. In the early nineties.
Jeff Rosen runs the National Constitution Center in Philadelphia, but
he used to make his living writing these wonderful profiles
(19:46):
of Supreme Court justices. And he's watched even Supreme Court
judges bow to the social pressure to let everyone get
to know them. Now the transcripts are published on the
same day, the justices are identified by name, and the
justices are writing best selling books, and they're appearing not
only on c spand but on the networks, and they're
(20:06):
opening themselves up to being just as accessible is all
the other celebrified figures in our celebrified culture. Honorable the
Chief Justice and the Associate Justices of the Supreme Court
of the United States. Something different is going on here
than what goes on in the Capitol Building or in
the White House. And you need to appreciate how important
(20:27):
it is to our system of government. Jeff Rosen doesn't
approve of any of this. He really doesn't approve. He
thinks that would all be better off if judges retain
their old mystique, if they weren't so human. But you
know what, it's too late, and Jeremy Fogel thinks this
might be okay. One of the things that will help
(20:50):
strengthen traditional independence is if the public understands more about judges.
People don't understand what we do, and what you see
is that use caricatures, and I think the more you
can kind of really paint the picture and kind of
get out there's a job. You know, it's like being
a doctor, it's like being a teacher, being a fighter pilot.
I mean, there's a skill set that goes with it,
(21:11):
and there's a set of values that go with it,
and that it's inappropriate for people to be like making
death threats. Yeah. So that part of the problem with
the judge in American life is that he's so different
from so much else of American life. Americans go through
life doing what they feel like doing right, and it's
hard to imagine themselves into a headspace where they're doing
things for some reason other than they want to do them.
(21:33):
That's right, Americans really don't understand refs. Jeremy Fogel felt
that they needed to, and so in twenty eleven, when
he was sixty one years old, he did something that
would have surprised his younger self. He left the bench
for this thing in Washington called the Federal Judicial Center,
(21:54):
created by Congress back in the nineteen sixties to improve
the nation's entire judiciary. Jeremy Fogel agrees to run it.
He thinks he can use the place to train judges
in better ways, so they can withstand the new transparency
and be better than the caricature as we see in
confirmation battles. Did you consume alcohol during your high school years? Yes,
(22:19):
we drank beer. My friends and I the boys and girls.
I liked beer. Still like beer, And I think, you know,
judges all over the country are really struggling with this.
I mean, like, how how do we explain to people
that know? I mean, that's just not who we are,
it's not what we do, and it's really important that
you know that. Where do you hear that? I hear it.
(22:42):
I just hear it from other judges, and I hear
it from judges as state level and the federal level,
and you're hearing this in a way you wouldn't have
heard it when you started your career. That's right. So
this is changing. It is changing. It is changing. It
is something that's in the air. Actually, it must be
more than one thing, because it's new to your nose,
an entirely new smell. Has anyone told you about the
(23:06):
what judges you for breakfast study? Tell me about it.
That's Emily Basilon. She's written so much interesting journalism about
the American legal system that the Yale Law School has
made her a research scholar. Okay, so this is at
this point kind of a famous study in law nerd world.
(23:26):
Somebody looked at the sentencing decisions that judge is made
right before lunch and right after lunch, and they found
that after lunch judges are nicer, and before lunch, when
presumably they're getting a little peckish, they're meaner. They give
out longer sentences before lunch than after lunch. That's terrifying. Yeah,
(23:49):
it really is, because it feels so random, not just random, disturbing.
I'm not sure anyone ever really believed that human beings
could be perfectly rational, but people who used to sort
of believe it, or at least pretend to believe it.
We created excuses for why we didn't need to pay
too much attention to what was going on inside of
judge's minds. I mean, they'd be hand picked to make
(24:10):
hard decisions. How could there be anything but good at it.
We had a group of judges trial court judges in Texas,
really municipal judges, the kind of folks who see traffic
tickets and fines for restaurants and the like. Jeffrey Klinsky
teaches at Cornell Law School. He's now almost famous for
these elaborate experiments involving judges, showing that when it comes
(24:33):
to making decisions, judges suck in exactly the same way
as other human beings. In one study, he wanted to
see if you could screw up judges minds by putting
some random number into their brains. So he gave them
a scenario involving a nightclub that violated noise ordinances. The
judges had to figure out a proper fine, and for
(24:53):
half of them, we called told them that the club
was named Club fifty eight, after its street address. For
the other half. We told them it was Club eleven thousand,
eight hundred and sixty six after its street address, and
the fine was three times as high for Club eleven thousand,
eight hundred sixty six. Two of the judges even in
fact find the Club eleven thousand, eight hundred and sixty
(25:14):
six dollars. They thought that, well, that's a clever number.
Let's put that in and find them. You heard it
here first, Never ever call your establishment club eleven eight
hundred and sixty six, or mention any other random big
number to a judge in the process of finding you,
or for that matter, think that the judge is any
more capable than other human beings at checking himself before
(25:36):
he screws up. Eighty six percent of automobile drivers say
they're less likely than the median driver to get into
a car accident. People always think they're above average, especially
when it comes to something they care about. But most
trial judges care about is not having their rulings overturned.
So we asked them, how likely are you, relative to
the median judge in this room to be overturned on appeal?
(26:00):
And indeed, eighty seven percent of them said they were
less likely than the median judge to be overturned on appeal.
Later on, we asked a group of judges, is how
effective are you at avoiding race or gender bias in
your decisions? And nine of them are better than the
median judge at that. There's a long list of stuff
like this. It's the same stupid stuff that all people do.
(26:25):
The evidence has been piling up that judges are no
more than human at a time when being human is
maybe less flattering than it's ever been. It's funny how
neatly you can map what's happening to sports referees onto judges.
(26:46):
They've always had their biases, we're just getting better at
seeing them. We now know that sports refs, who are
made aware of their biases they make better calls. Same
should be true of judges, right, I mean, once you
know that you send people to jail longer right before
lunch than you do right after lunch, you can start
to watch your blood sugar. But as with sports refs,
(27:11):
a lot of people clearly believe that judges are getting worse.
It's as if we've demanded to know the truth without
realizing we can't handle the truth. Wait, it's such a
paradox that if we become more honest about the ways
in which someone's values and politics inform their judicial decisions,
that were somehow doing them a disservice. I'm talking to
(27:33):
Emily Basilon again. You know, it's funny. It's like the
system does much better if nobody's paying too much attention
to it. I think that's absolutely true. I mean, there's
something useful about the fiction that there is a totally
separate group of people called judges. They wear black robes,
they're Olympian, they're doing their own thing, and they're handing
down decisions from un high It's not true, right, I mean,
(27:57):
I really think it's like a kind of an idealized
notion of the law that is essentially false, because people's
prior beliefs and their values do shape the decisions they
make when they have real choice. Right. And Yet I'm
torn because when we had the fiction that judges were
doing some totally different thing, it was easier, I think,
for them to try to measure impartiality in that way,
(28:21):
to try to adhere to that standard. But it's hard
to imagine how the fiction would be restored. Oh yes,
it's gone. How long have baby judges been taught about
the importance of their emotions since twenty thirteen, so this
is a new thing. It's a new thing. Yeah. Her
(28:41):
name is Terry Moroney. She teaches LRD Vanderbilt. Jeremy Fogo
brought her in to teach judges in the new program
he created at the Federal Judicial Center Baby Judge School,
they call it new Judges now learn all about the
sorts of things they never used to have to think about,
like the mental errors to which all human beings are prone,
(29:03):
and their emotions. The law has maintained this very odd
fiction that emotion is a relevant to law and that
laws all about rationality, when pretty much every other discipline
in the world understands that emotion is central to all
aspects of human life. It's funny because I think historically,
if you'd ask people, they said, an emotional judge can't
(29:26):
be as fair as an unemotional judge. And what you're
saying is the emotions are always there, and it's the
judge doesn't recognize them, who can't who won't be fair?
That's correct. Yeah, The emotional lives of judges have been
discovered at roughly the same time as the emotional lives
of monkeys. It turns out they have a lot in common,
(29:47):
which is why Jeremy Fogel put emotional training at the
center of Baby Judge School. I wonder if you've going
back in history and tried to introduce this curriculum in
an earlier point in the history of the judiciary, if
people would have responded the same way. Said a really
interesting thought experiment, because when I was a California State judge,
I was involved in working with the California version of
(30:09):
the FJC and actually designed a class that looked at this,
and the general responds from judges at that time was,
you know, I just want to do my job, and
you know I don't. They didn't. They didn't say anything
like I didn't I don't have any feelings, but they
just said, I mean, I don't want to I don't
really want to go there. I don't need to go there.
(30:30):
And if it was somehow irrelevant to the job exactly,
the fiction is collapsing or has collapsed about who what
a judge is and what's inside a judge and how
it judge functions, and it's going to have to be
replaced by something else, right, and you're trying to you're
trying to work towards what it gets replaced by exactly.
(30:51):
I mean, that's exactly what I'm trying to do. It.
The general idea of baby Judge School is to turn
judges into people who can judge themselves as well as others,
because the job's putting these new pressures on judges, and
if judges don't learn to cope, the pressures will crack
them and make the entire situation and even worse. And
when you start to baby like everybody else, you're gonna
(31:12):
get treated like that. That's exactly what the problem was.
And I think that's what really upset me and ended
upset a lot of judges, I know, and your respective
of ideology, you know. But then so then what's the
you know, what's the remedy or is there a remedy
or you know, it's it just was we didn't nobody
likes seeing that this whole two week effort has been
a calculated and orchestrated political hit, almost by himself. Justice
(31:37):
Kavanaugh killed any doubts that emotions inside judges might be
a problem, fueled with apparent pent up anger about President
Trump and the twenty sixteen election fear that has been
unfairly stoked about my judicial record, revenge on behalf of
the Clintons, and millions of dollars in money from outside
left wing opposition groups. The question I guess I have
(32:00):
is how much can be done about it? Even with
the best coaching I come in. I'm a baby judge.
You know, I don't really care about other people's feeling.
I don't look you in the eye. But I'm very
reasonable and I got as, I got AIS and all
my classes in law school and eight under too, my
LSA t right, and I can write a really cool brief. However,
I don't feel your pain. What do you do to
(32:22):
school me? Well, you know there's a very long answer
to that, and that's a lifetime of work. Carry maroney again,
give me, give me an example, just one example of
a of a tool. I want a tool. Yes, So
one tool is situation modification. You can modify some aspects
of this situation to enable you to be in greater
(32:45):
control and give you time and space to self reflect
into act. So sometimes it's as simple as taking a break.
Let me stop here. Like all of these feelings and
the tools that you might give them to deal with
these feelings. This will make I can see why this
would help make the judge feel better about about himself
and about his job and able to sleep at night. Yeah, which,
(33:06):
actually it's not going to actually affect the sentencing, is it. Well,
it could actually because again, think about a judge who says,
I realized that I didn't want to send it in anger.
Anger makes you very punitive. That's part of what it's for.
That's the tendency that it evokes in humans as to
attach responsibility and to take punitive action in response to it.
(33:34):
In a funny way, American judges are in the same
situation as the judges in Uzbekistan. They're being forced to
adapt to a new environment. Mister Trump tweeted last week
about the Seattle judge for ruling against his executive order
on immigration, only the American environment is increasingly driven by emotion,
saying so the opinion of this so called judge, which
(33:56):
essentially takes law enforcement away from our country, is ridiculous
and will be overturned. That judge, James Robart, immediately became
a target on social media, with one person even calling
him a dead man walking. This is Jeremy Fogel's worst nightmare.
So Judge Robart, who was the judge in Seattle who
did the travel band case, got over a million emails.
(34:20):
He got death threats, and the death threats the Marshal
Service determined were credible enough that they had to give
him twenty four hour protection. And what facilitated all of
that was was social media. Are there other judges like Robot?
Sure the Ninth Circuit judges who reviewed Robart's decision that
got the same as a judge Jeremy Fogel had upset
(34:43):
people with his rulings back in two thousand and six.
He had blocked the execution of a man who had
raped and strangled the seventeen year old girl. After Fogel's ruling,
people went crazy. But crazy in two thousand and six
is different from crazy now. The point is that everything
is amplified and sped up, and there's just no way
(35:05):
you can respond to that. Judges are precluded by the
Code of Conduct from commenting on pending cases. These forces
of it that are antagonistic to judicial authority. I've gained
enormous strength, and there's not a corresponding gain in in
the forces. In the strength of the forces that might
defend authority. That's right. I think there are steps along
(35:28):
the way, and that one of the most important qualities
judges in America have right now is that people believe
in their independence. Emily Basilon with one final thought, if
that starts to break down in a really serious way,
then even if they technically remain independent, wouldn't they start
to feel tempted more and more to do whatever is
(35:51):
politically expedient. But if they stop behaving in any plausible
way as if they're independent, then aren't we on our
way to Uzbekistan? America Obviously isn't Uzbekistan. The Uzbek judges
lived in a black box. The American judge lives in
a plex a glass cage. The Uzbeks had no ability
(36:12):
to criticize their system of justice or even to see
how it really worked. We watch our judges as they've
never been watched before. It's not that all eyes are
upon judges when they do their jobs. It's that all
eyes are upon them when they do their jobs in
unpopular ways. When some subset of the population feels that
(36:33):
it's being handed a cucumber when it deserves a grape.
People from the Supreme Court of Ukraine came to visit
and so in this meeting with them, and they say, well,
you know what happens when you rule against the government,
and so nothing, you know, if the government doesn't like
the ruling, they appeal, you know, but nothing happens to me,
you know. And they thought I was being disrespectful, that
(36:56):
I wasn't being truthful with them. He was being truthful.
But there's more than one way to attack the independence
of judges. You don't need to completely eliminate it. All
you need to do is to generate sufficient mistry trust
of their judgments, and then it isn't long before every
judge is just a little bit frightened to do her job.
(37:16):
The Ninth Circuit we're gonna have to look at that,
because every case, no matter where it is, they file it.
And what's called the Ninth Circuit. This was an Obama judge.
And I'll tell you what, It's not gonna happen like
this anymore. She tests her rock now against the wall.
She needs to give it to us and cumber again.
(37:42):
There's one big practical difference between experimental monkeys and human beings.
The monkeys at least pretend to respect their referees, the
people who work with them, and the scientists really do
want the best for the monkeys. The researchers piss them
off by giving one a cucumber and another a grape,
but they don't allow them to stay pissed off. And
(38:04):
how long do the feelings linger? Oh, then I don't know.
We usually by the end of the experiment, because these
monkeys live in the group, they don't live in these
test chambers. By the end of the experiment, we give
them a lot of food and all very happy, and
then they are sent back to the group. So we
never know how long how long they're mad, because we
don't want them to be frustrated by the experiment. People
(38:28):
aren't given that chance. Our experiment is called life, and
it's frustrating when we see unfairness. We aren't sent to
some decompression chamber to calm down before rejoining our fellow
human beings. We look around for something or someone to attack,
and at some point we see the judge. I'm Michael Lewis,
(39:05):
thanks for listening to Against the Rules. Against the Rule
is brought to you by Pushkin Industries. The show is
produced by Audrey Dilling and Katherine Giredo, with research assistance
from Zoe, Oliver Gray and Beth Johnson. Our editor is
Julia Barton. Mia Lobell is our executive producer. Our theme
(39:28):
was composed by Nick Brittel, with additional scoring by Seth Samuel,
mastering by Jason Gambrel. Our show was recorded by Tofa
Ruth at Northgate Studios in Berkeley. Special thanks to our founders,
Jacob Weisberg and Malcolm Gladwell.
Pushkin. One of the cooler things that happened in the
last few decades is that scientists have decided that emotions
are worth studying, and they found new ways to study them,
not just in people, also in animals. The guy who's
taken the lead with the animals is a Dutch primatologist
(00:37):
named Franz Dawal. You know, emotions are sort of taboo topic.
They used to be, at least, and so most of
the time we don't explicitly discuss them. We discussed the
behavior that they produce, but not the emotions themselves. That's
Dwall himself. He's Dutch but works in Atlanta at Emory University.
(00:59):
When he started out, no one thought you could study
the emotions of animals. A lot of people just assumed
that animals didn't have emotions and scientists shouldn't care if
they did, but not supposed to talk about mental states
or feelings or planning or thoughts or whatever. And so
there was a taboo for one hundred years on talking
(01:20):
about that. And it's only in the last twenty years
or so that taboos being lifted, and that the more
and more scientists are open about internal states, meaning emotions.
They so clearly drive behavior in both animals and people,
which brings me to Professor the Wall's most famous experiment.
(01:40):
I worked with capuccin monkeys for a long time. We
noticed in our lap that the monkeys were always very
keenly watching what somebody else would get, not just what
they themselves get for a task, but also what somebody
else is getting. So the final experiment that I want
to mention to you is our fairness study. This is
the Wall's ted talk about that experiment. Two monkeys in
(02:03):
cages side by side. The cages are plexiglass, so the
monkey can see each other and the scientist. They're given
treats for performing a task. The task is to take
a rock from a researcher and hand it back to her.
It doesn't sound so hard, but then you're not a monkey.
(02:23):
The treat is a slice of cucumber. And if you
give both of them cucumber for the task, the two
monkeys side beside, they're perfectly willing to do this twenty
five times in a row. So cucumber, even though it's
really only water in my opinion, but cucumber is perfectly
fine for them, perfectly fine. But then a few rounds in.
(02:44):
One of the monkeys hands back the rock, and the
researcher gives that monkey a grape, not a cucumber. Monkeys
really like grapes, and the other one sees that The
other monkey stares. She waits her turn. She gets the
rock and hands it back, gets again cucumber. She looks
back and forth between the cucumber and the other monkey.
(03:09):
She just chucked the cucumber back at the researcher. Then
she goes ape shit. The researcher keeps giving grapes to
one monkey and cucumbers to the other. She tests a
rock now against the wall if she needs to give
it to us, and gets cucumber again. The monkey that
(03:31):
gets cucumber explodes in anger, climbing the walls of the cage,
throwing whatever she can get her paws on at the researcher.
So this is basically the Wall Street protest that you
see here. At some deep level, monkeys expect life to
be fair, and so do we. The human sense of
(03:53):
fairness is not just some sort of mental product some
sort of countient philosopher would say. Is that it's a
principle that we have arrived at by reasoning and logic
or something like that. No, no, there's there's a real
emotion behind it. And that's why the behind all these
moral principles that we have. This experiment isn't just about unfairness.
(04:17):
To have any effect at all, the unfairness has to
be out in the open. The monkey getting the cucumber
needs to see the monkey getting the grape. So it's
also about the relationship between transparency and unfairness. I sometimes
wonder what would happen if people ever got to see
(04:37):
all the unfairness in life, if say, some magical new
technology came along that generally increase the transparency in the world.
Oh wait, it just did. My name is Michael Lewis,
and this is against the rules. I show about the
(04:58):
decline of the human referee in American life and what
that's doing to our idea of fairness. I was talking
the other day with a woman named Musa sever She'd
grown up in Slovenia when it was part of Yugoslavia,
(05:22):
and she was there in the nineteen nineties when Yugoslavia
fell apart. Hundreds of thousands were killed, millions more persecuted.
Musa escaped, but with the new conviction that nothing was
more important than the rule of law. Justice. She wanted
everyone everywhere to have it. In two thousand and three,
(05:44):
she moved to Uzbekistan. Uzbekistan was not an obvious upgrade
on Slovenia, even at its most terrifying. Well, they had
a pretty nice constitution, but that was mainly on the paper.
Security services were controlling everything. A group called Freedom House
(06:06):
had sent Musa to document what was happening in Uzbeka
stands prisons. The prisons had become the Uzbek government's torture chambers.
They had cattle prods and rooms where they hung you
from your wrists and ankles, other rooms where they beat
you with robber hoses and smothered you with plastic bags,
all done in total secrecy, just like the trials that
(06:28):
had sent people to prison in the first place. And
what about the judges in the courtroom, where the judges
were kind of independence? Did they have? No? No, no no.
That was the old legacy of the Soviet system made
prosecutors totally in charge of everything. The government. Prosecutors were
(06:51):
in charge. The judges had zero power. They just took
orders from the prosecutors. The orders were simple. Any person
who gets arrested is guilty. As soon as you did
something that got the police to arrest, that was it.
You couldn't get out. Can you just describe like you're
(07:13):
describing to a child, would it felt like to live
in that system? Well, one person didn't matter. You didn't
matter at all. So the only way how people tried
to preserve their safety was they didn't stick out in
any way. People had to stay hidden. Not because the
(07:37):
Uzbeks didn't have any laws. They had their nice little constitution.
What they lacked was an idea at the center of
any system of justice, the independent judge, the ref in robes,
the human being charged with ensuring fairness in the court
of law. When you live in a country that doesn't
(07:59):
have people like that, you wake up every day to
the same emotion. Fear that there was always fearing, Yeah,
fear that if you don't do what the state wants
you to do, they could eliminate you. The Uzbeks didn't
invent the police state. They were just more enthusiastic about
it than most. But in two thousand and sixteen something changed.
(08:23):
Muy the president died. That was his funeral. He was
the only president that Uzbekistan had ever had, And the
new president decided amazingly and without any great revolution, to
open things up, to create basically from scratch, a legal
(08:47):
system that included some concept of fairness in practice that
meant handing actual power to the people who'd never had
any The judges the refs, which sounds like it should
be easy for the judges, right, You don't really think
of them having to learn how to be independent. It's
(09:08):
like breathing. You do it so long as you're allowed to.
It turns out that's wrong. The younger ones are those
usually to make a decision on acquittals and try to
do things right. The older ones are still they find
it hard. So if you're a defendant and you walk
(09:28):
into a courtroom and you see a young judge, you're
happier than if you see an old judge. Yeah, definitely,
because only the new judges will acquit you. The old
guys will still assume you're supposed to be sent directly
to jail. It's as if they don't want their independence,
or as if the Uzbek system doesn't know how to
(09:49):
grant it to them. The Uzbeks have done all kinds
of things to get the changes to work. They've invited
American judges to visit to teach them about judicial independence.
They've opened their courtrooms so people can watch the trials.
Musa had this idea of staging mock trials so that
the old guys could see what fairness looked like. So
(10:11):
we had two trials. On both trials that defense won
the case. That was such a shock the team of prosecutors,
and they sent us the best. Didn't you even want
to shake the hands with the team of defense. They
were so pieced off, and they would be asking what
(10:33):
happens to American prosecutor when he loses a case? Does
he lose a job? Is he punished? They were an
undefeated team up to that point. Yes, they never lost.
They never lost because they were not supposed to lose.
They're not supposed to lose, right, Changing those attitudes must
not be easy. It's not easy, and you know that's
(10:56):
why I'm there fifteen years. All of which is to
say that a system of justice isn't just a bunch
of laws. A system of justice lives and dies on
the emotion it evokes, especially feelings about the judges, and
the judges feelings about their role. So here's what happens.
(11:17):
We're in front of a very hostile judge. The judge
was appointed by Barack Obama, federal judge. These feelings can change.
They're changing right here, right now, because he's given us
ruling after ruling after ruling, negative, negative, negative. The uzbeks
(11:37):
have picked a funny moment to emulate the American system
of justice. They want transparency, they want the people to
see the judges at work. At the same time, Americans
are being encouraged to watch their judges more closely than ever,
and what they see is causing some problems. So I
(12:05):
walked in, and I mean, I think, I think I
look younger than I am anyway, and so I think,
you know, I think, you know, I thought a lot
of people just assumed guy was, you know, in my
early twenties or something. You know, this is Jeremy Fogel.
He was once a judge, but not just any judge.
A judge you had a gift for watching himself on
the job. Presiding judge gave me a file and say
(12:26):
here's your first case. The jury's coming in half an
hour or something like that. This podcast was bound to
lead to judges. They're too important to ignore, but they
usually don't have much to say for themselves. By law,
they're forbidden from discussing their cases. By custom, they don't
typically invite you to get to know them. That's why
(12:49):
I've come to Jeremy Fogel. He's decided that judges have
no choice but to break their silence because they're being
watched in new ways, and he's sort of taking the lead.
Fogel was always a little odd for a judge. He
went to college during the Vietnam War. He'd studied religion
and wanted to become a professor, but the war or
(13:09):
switched on something inside of him made him want to
do something practical out in the world. I just felt
like an academic life was going to be too cloistered,
so law school was kind of something I did, almost
as an afterthought. He became a public defender, taking the
cases of people who couldn't afford a lawyer. He saw
(13:32):
the unfairness of the system, the crazy inequality, the likelihood
that it would treat a poor person less fairly than
a rich person. Jeremy was doing what he could directify that,
but he sensed that he had this thing about him
that made him less than ideal for the job. You
can't be the one sided advocate where you you just
kind of go in and say, well, you know, my
(13:54):
client's entirely right and these people are entirely wrong. I
never felt comfortable doing that. He didn't like taking sides,
which is a problem if you're a lawyer. You know,
there's there's lawyers who actually believe their clients cases totally right.
Then there's people who know that it isn't but they
can play the role. And I wasn't ever really that
(14:14):
comfortable playing the role at the same time. I mean,
I was aware of my ethical obligations were and so
I started to think about, well if you what if
I were a neutral? A neutral we know now how
hard they are to find others who knew. Jeremy Fogel
had the same thought. In nineteen eighty six, Fogel was
appointed to be a California state judge. It nerve wracking. Well,
(14:37):
I was really nervous, you know, I didn't know what
to expect. And no, I don't think I don't I
know think I ever hit the gavel in my life.
But but but I just I was never in a
I was never in a mood where I felt like
I needed to do that. He wound up running a
family court without ever once using his gavel. He presided
over divorces and custody battles. It was emotional, angry, ugly.
(15:01):
If a judge had some perverse desire to be murdered
by the people in his courtroom, he'd ask for family
court duty. Most judges dislike family cord because it's the
hot zone. Jeremy Fogel didn't just like it. He loved it.
You know, you have people who are quote normal most
of the time, who when they're in the middle of
the divorce or not temporarily, they're temporarily insane. Right, So
(15:25):
the ability to kind of step in and bring a
little bit of order to the situation actually was something
I felt very positive about. And how did you do that?
I mean, I think a lot of it was just
just listening and trying to figure out what's really going on.
And you know, they're fighting about who gets the dog.
You know, they're fighting about who gets the piano or
(15:46):
you knows, And I just said, it's not about the piano,
you know, this is this is a power struggle, you know.
So I would say parties, I would bring them in
for mediations. They would talk to me about this, you know,
and so you know, you would kind of dig down
and you could sort of see what the underlying problem was,
and then you could say, well, how are we gonna
how are we going to move forward here? You know,
(16:06):
how are we going to get you folks divorce? Because
that's really what needs to happen. Right, you're getting a
feel for him. A born neutral, some people just are.
Jeremy Fogel thinks he caught the trait from growing up
with a volatile father, from wanting life at home to
just calm him down anyway. Judging suits him. In nineteen
ninety seven, Bill Clinton appoints him to the United States
(16:28):
Court for the District of Northern California. It's the big time.
He goes from being one of tens of thousands of
state judges to one of only two thousand federal judges.
He's got life tenure in this job that he totally loves.
But now he's noticing things and they're pulling him outside
of himself, causing him to watch himself meta judging. And
(16:52):
it's actually really hard to be humble when you're a
judge because the the everybody's countown to you. You're you're,
you're wearing the robe, and you're on the bench, and
everybody's you know, calling you your honor and they're you know,
there's there's a lot of false deference. I think a
judge you can make huge mistakes and still fool himself
into thinking that he was doing great. Jeremy Fogel tried
(17:15):
to fight this tendency by not allowing himself to forget
his most terrible mistakes. I mean, the one that always
comes to mind was when I was doing the Mantle
Health calendar and this young man was trying to get
off of conservativeship, and the doctors were saying, no, he's
managed depressive and he would be dangerous to himself, and
(17:36):
he persuaded me that he was okay, and he killed
himself the next day. Judging forces you to make these
horrible life and death decisions when you really don't know
the right answer. Jeremy Fogel knows that he's going to
be wrong sometimes, and so he thinks it's important for
the people on the receiving end of his judgments to
sense his humility, his humanity. He thinks judges need to
(17:59):
be not as book smart, but people smart, so that
people who leave their courtroom feel okay with what's just happened.
We need a curriculum. You need to be intentional about
what we're teaching judges. What kind of judges are we
trying to grow? You know, the longer Jeremy Foggle is
a judge, the more worried he becomes about the relationship
(18:21):
between Americans and their judges. He's right to be worried.
American judges are being threatened and challenged and exposed as
never before. You to say, Senator, I would like to
start by saying, unequivocally, uncategorically that I deny each and
(18:42):
every single allegation against me today that suggested in any
way that I had conversations of a sexual nature or
about pornographic material with Anita Hill. Supreme Court confirmation battles.
They're now just a ritual in American culture, but they
(19:04):
have echoes in the daily lives of ordinary judges. Political
attacks on jeg are on the rise, Physical attacks on
judges are on the rise, and there's this new demand
that judges reveal more and more of themselves in their
lives to us. When I was started writing the norm
was still for the justices not to grant many, if any,
(19:25):
on the record interviews, And in fact, the Supreme Court
at that time didn't even publish transcripts of the arguments
on the same day, and they would just refer to
the court rather than an individual justice. That's how impersonal
the whole thing was supposed to be. In the early nineties.
Jeff Rosen runs the National Constitution Center in Philadelphia, but
he used to make his living writing these wonderful profiles
(19:46):
of Supreme Court justices. And he's watched even Supreme Court
judges bow to the social pressure to let everyone get
to know them. Now the transcripts are published on the
same day, the justices are identified by name, and the
justices are writing best selling books, and they're appearing not
only on c spand but on the networks, and they're
(20:06):
opening themselves up to being just as accessible is all
the other celebrified figures in our celebrified culture. Honorable the
Chief Justice and the Associate Justices of the Supreme Court
of the United States. Something different is going on here
than what goes on in the Capitol Building or in
the White House. And you need to appreciate how important
(20:27):
it is to our system of government. Jeff Rosen doesn't
approve of any of this. He really doesn't approve. He
thinks that would all be better off if judges retain
their old mystique, if they weren't so human. But you
know what, it's too late, and Jeremy Fogel thinks this
might be okay. One of the things that will help
(20:50):
strengthen traditional independence is if the public understands more about judges.
People don't understand what we do, and what you see
is that use caricatures, and I think the more you
can kind of really paint the picture and kind of
get out there's a job. You know, it's like being
a doctor, it's like being a teacher, being a fighter pilot.
I mean, there's a skill set that goes with it,
(21:11):
and there's a set of values that go with it,
and that it's inappropriate for people to be like making
death threats. Yeah. So that part of the problem with
the judge in American life is that he's so different
from so much else of American life. Americans go through
life doing what they feel like doing right, and it's
hard to imagine themselves into a headspace where they're doing
things for some reason other than they want to do them.
(21:33):
That's right, Americans really don't understand refs. Jeremy Fogel felt
that they needed to, and so in twenty eleven, when
he was sixty one years old, he did something that
would have surprised his younger self. He left the bench
for this thing in Washington called the Federal Judicial Center,
(21:54):
created by Congress back in the nineteen sixties to improve
the nation's entire judiciary. Jeremy Fogel agrees to run it.
He thinks he can use the place to train judges
in better ways, so they can withstand the new transparency
and be better than the caricature as we see in
confirmation battles. Did you consume alcohol during your high school years? Yes,
(22:19):
we drank beer. My friends and I the boys and girls.
I liked beer. Still like beer, And I think, you know,
judges all over the country are really struggling with this.
I mean, like, how how do we explain to people
that know? I mean, that's just not who we are,
it's not what we do, and it's really important that
you know that. Where do you hear that? I hear it.
(22:42):
I just hear it from other judges, and I hear
it from judges as state level and the federal level,
and you're hearing this in a way you wouldn't have
heard it when you started your career. That's right. So
this is changing. It is changing. It is changing. It
is something that's in the air. Actually, it must be
more than one thing, because it's new to your nose,
an entirely new smell. Has anyone told you about the
(23:06):
what judges you for breakfast study? Tell me about it.
That's Emily Basilon. She's written so much interesting journalism about
the American legal system that the Yale Law School has
made her a research scholar. Okay, so this is at
this point kind of a famous study in law nerd world.
(23:26):
Somebody looked at the sentencing decisions that judge is made
right before lunch and right after lunch, and they found
that after lunch judges are nicer, and before lunch, when
presumably they're getting a little peckish, they're meaner. They give
out longer sentences before lunch than after lunch. That's terrifying. Yeah,
(23:49):
it really is, because it feels so random, not just random, disturbing.
I'm not sure anyone ever really believed that human beings
could be perfectly rational, but people who used to sort
of believe it, or at least pretend to believe it.
We created excuses for why we didn't need to pay
too much attention to what was going on inside of
judge's minds. I mean, they'd be hand picked to make
(24:10):
hard decisions. How could there be anything but good at it.
We had a group of judges trial court judges in Texas,
really municipal judges, the kind of folks who see traffic
tickets and fines for restaurants and the like. Jeffrey Klinsky
teaches at Cornell Law School. He's now almost famous for
these elaborate experiments involving judges, showing that when it comes
(24:33):
to making decisions, judges suck in exactly the same way
as other human beings. In one study, he wanted to
see if you could screw up judges minds by putting
some random number into their brains. So he gave them
a scenario involving a nightclub that violated noise ordinances. The
judges had to figure out a proper fine, and for
(24:53):
half of them, we called told them that the club
was named Club fifty eight, after its street address. For
the other half. We told them it was Club eleven thousand,
eight hundred and sixty six after its street address, and
the fine was three times as high for Club eleven thousand,
eight hundred sixty six. Two of the judges even in
fact find the Club eleven thousand, eight hundred and sixty
(25:14):
six dollars. They thought that, well, that's a clever number.
Let's put that in and find them. You heard it
here first, Never ever call your establishment club eleven eight
hundred and sixty six, or mention any other random big
number to a judge in the process of finding you,
or for that matter, think that the judge is any
more capable than other human beings at checking himself before
(25:36):
he screws up. Eighty six percent of automobile drivers say
they're less likely than the median driver to get into
a car accident. People always think they're above average, especially
when it comes to something they care about. But most
trial judges care about is not having their rulings overturned.
So we asked them, how likely are you, relative to
the median judge in this room to be overturned on appeal?
(26:00):
And indeed, eighty seven percent of them said they were
less likely than the median judge to be overturned on appeal.
Later on, we asked a group of judges, is how
effective are you at avoiding race or gender bias in
your decisions? And nine of them are better than the
median judge at that. There's a long list of stuff
like this. It's the same stupid stuff that all people do.
(26:25):
The evidence has been piling up that judges are no
more than human at a time when being human is
maybe less flattering than it's ever been. It's funny how
neatly you can map what's happening to sports referees onto judges.
(26:46):
They've always had their biases, we're just getting better at
seeing them. We now know that sports refs, who are
made aware of their biases they make better calls. Same
should be true of judges, right, I mean, once you
know that you send people to jail longer right before
lunch than you do right after lunch, you can start
to watch your blood sugar. But as with sports refs,
(27:11):
a lot of people clearly believe that judges are getting worse.
It's as if we've demanded to know the truth without
realizing we can't handle the truth. Wait, it's such a
paradox that if we become more honest about the ways
in which someone's values and politics inform their judicial decisions,
that were somehow doing them a disservice. I'm talking to
(27:33):
Emily Basilon again. You know, it's funny. It's like the
system does much better if nobody's paying too much attention
to it. I think that's absolutely true. I mean, there's
something useful about the fiction that there is a totally
separate group of people called judges. They wear black robes,
they're Olympian, they're doing their own thing, and they're handing
down decisions from un high It's not true, right, I mean,
(27:57):
I really think it's like a kind of an idealized
notion of the law that is essentially false, because people's
prior beliefs and their values do shape the decisions they
make when they have real choice. Right. And Yet I'm
torn because when we had the fiction that judges were
doing some totally different thing, it was easier, I think,
for them to try to measure impartiality in that way,
(28:21):
to try to adhere to that standard. But it's hard
to imagine how the fiction would be restored. Oh yes,
it's gone. How long have baby judges been taught about
the importance of their emotions since twenty thirteen, so this
is a new thing. It's a new thing. Yeah. Her
(28:41):
name is Terry Moroney. She teaches LRD Vanderbilt. Jeremy Fogo
brought her in to teach judges in the new program
he created at the Federal Judicial Center Baby Judge School,
they call it new Judges now learn all about the
sorts of things they never used to have to think about,
like the mental errors to which all human beings are prone,
(29:03):
and their emotions. The law has maintained this very odd
fiction that emotion is a relevant to law and that
laws all about rationality, when pretty much every other discipline
in the world understands that emotion is central to all
aspects of human life. It's funny because I think historically,
if you'd ask people, they said, an emotional judge can't
(29:26):
be as fair as an unemotional judge. And what you're
saying is the emotions are always there, and it's the
judge doesn't recognize them, who can't who won't be fair?
That's correct. Yeah, The emotional lives of judges have been
discovered at roughly the same time as the emotional lives
of monkeys. It turns out they have a lot in common,
(29:47):
which is why Jeremy Fogel put emotional training at the
center of Baby Judge School. I wonder if you've going
back in history and tried to introduce this curriculum in
an earlier point in the history of the judiciary, if
people would have responded the same way. Said a really
interesting thought experiment, because when I was a California State judge,
I was involved in working with the California version of
(30:09):
the FJC and actually designed a class that looked at this,
and the general responds from judges at that time was,
you know, I just want to do my job, and
you know I don't. They didn't. They didn't say anything
like I didn't I don't have any feelings, but they
just said, I mean, I don't want to I don't
really want to go there. I don't need to go there.
(30:30):
And if it was somehow irrelevant to the job exactly,
the fiction is collapsing or has collapsed about who what
a judge is and what's inside a judge and how
it judge functions, and it's going to have to be
replaced by something else, right, and you're trying to you're
trying to work towards what it gets replaced by exactly.
(30:51):
I mean, that's exactly what I'm trying to do. It.
The general idea of baby Judge School is to turn
judges into people who can judge themselves as well as others,
because the job's putting these new pressures on judges, and
if judges don't learn to cope, the pressures will crack
them and make the entire situation and even worse. And
when you start to baby like everybody else, you're gonna
(31:12):
get treated like that. That's exactly what the problem was.
And I think that's what really upset me and ended
upset a lot of judges, I know, and your respective
of ideology, you know. But then so then what's the
you know, what's the remedy or is there a remedy
or you know, it's it just was we didn't nobody
likes seeing that this whole two week effort has been
a calculated and orchestrated political hit, almost by himself. Justice
(31:37):
Kavanaugh killed any doubts that emotions inside judges might be
a problem, fueled with apparent pent up anger about President
Trump and the twenty sixteen election fear that has been
unfairly stoked about my judicial record, revenge on behalf of
the Clintons, and millions of dollars in money from outside
left wing opposition groups. The question I guess I have
(32:00):
is how much can be done about it? Even with
the best coaching I come in. I'm a baby judge.
You know, I don't really care about other people's feeling.
I don't look you in the eye. But I'm very
reasonable and I got as, I got AIS and all
my classes in law school and eight under too, my
LSA t right, and I can write a really cool brief. However,
I don't feel your pain. What do you do to
(32:22):
school me? Well, you know there's a very long answer
to that, and that's a lifetime of work. Carry maroney again,
give me, give me an example, just one example of
a of a tool. I want a tool. Yes, So
one tool is situation modification. You can modify some aspects
of this situation to enable you to be in greater
(32:45):
control and give you time and space to self reflect
into act. So sometimes it's as simple as taking a break.
Let me stop here. Like all of these feelings and
the tools that you might give them to deal with
these feelings. This will make I can see why this
would help make the judge feel better about about himself
and about his job and able to sleep at night. Yeah, which,
(33:06):
actually it's not going to actually affect the sentencing, is it. Well,
it could actually because again, think about a judge who says,
I realized that I didn't want to send it in anger.
Anger makes you very punitive. That's part of what it's for.
That's the tendency that it evokes in humans as to
attach responsibility and to take punitive action in response to it.
(33:34):
In a funny way, American judges are in the same
situation as the judges in Uzbekistan. They're being forced to
adapt to a new environment. Mister Trump tweeted last week
about the Seattle judge for ruling against his executive order
on immigration, only the American environment is increasingly driven by emotion,
saying so the opinion of this so called judge, which
(33:56):
essentially takes law enforcement away from our country, is ridiculous
and will be overturned. That judge, James Robart, immediately became
a target on social media, with one person even calling
him a dead man walking. This is Jeremy Fogel's worst nightmare.
So Judge Robart, who was the judge in Seattle who
did the travel band case, got over a million emails.
(34:20):
He got death threats, and the death threats the Marshal
Service determined were credible enough that they had to give
him twenty four hour protection. And what facilitated all of
that was was social media. Are there other judges like Robot?
Sure the Ninth Circuit judges who reviewed Robart's decision that
got the same as a judge Jeremy Fogel had upset
(34:43):
people with his rulings back in two thousand and six.
He had blocked the execution of a man who had
raped and strangled the seventeen year old girl. After Fogel's ruling,
people went crazy. But crazy in two thousand and six
is different from crazy now. The point is that everything
is amplified and sped up, and there's just no way
(35:05):
you can respond to that. Judges are precluded by the
Code of Conduct from commenting on pending cases. These forces
of it that are antagonistic to judicial authority. I've gained
enormous strength, and there's not a corresponding gain in in
the forces. In the strength of the forces that might
defend authority. That's right. I think there are steps along
(35:28):
the way, and that one of the most important qualities
judges in America have right now is that people believe
in their independence. Emily Basilon with one final thought, if
that starts to break down in a really serious way,
then even if they technically remain independent, wouldn't they start
to feel tempted more and more to do whatever is
(35:51):
politically expedient. But if they stop behaving in any plausible
way as if they're independent, then aren't we on our
way to Uzbekistan? America Obviously isn't Uzbekistan. The Uzbek judges
lived in a black box. The American judge lives in
a plex a glass cage. The Uzbeks had no ability
(36:12):
to criticize their system of justice or even to see
how it really worked. We watch our judges as they've
never been watched before. It's not that all eyes are
upon judges when they do their jobs. It's that all
eyes are upon them when they do their jobs in
unpopular ways. When some subset of the population feels that
(36:33):
it's being handed a cucumber when it deserves a grape.
People from the Supreme Court of Ukraine came to visit
and so in this meeting with them, and they say, well,
you know what happens when you rule against the government,
and so nothing, you know, if the government doesn't like
the ruling, they appeal, you know, but nothing happens to me,
you know. And they thought I was being disrespectful, that
(36:56):
I wasn't being truthful with them. He was being truthful.
But there's more than one way to attack the independence
of judges. You don't need to completely eliminate it. All
you need to do is to generate sufficient mistry trust
of their judgments, and then it isn't long before every
judge is just a little bit frightened to do her job.
(37:16):
The Ninth Circuit we're gonna have to look at that,
because every case, no matter where it is, they file it.
And what's called the Ninth Circuit. This was an Obama judge.
And I'll tell you what, It's not gonna happen like
this anymore. She tests her rock now against the wall.
She needs to give it to us and cumber again.
(37:42):
There's one big practical difference between experimental monkeys and human beings.
The monkeys at least pretend to respect their referees, the
people who work with them, and the scientists really do
want the best for the monkeys. The researchers piss them
off by giving one a cucumber and another a grape,
but they don't allow them to stay pissed off. And
(38:04):
how long do the feelings linger? Oh, then I don't know.
We usually by the end of the experiment, because these
monkeys live in the group, they don't live in these
test chambers. By the end of the experiment, we give
them a lot of food and all very happy, and
then they are sent back to the group. So we
never know how long how long they're mad, because we
don't want them to be frustrated by the experiment. People
(38:28):
aren't given that chance. Our experiment is called life, and
it's frustrating when we see unfairness. We aren't sent to
some decompression chamber to calm down before rejoining our fellow
human beings. We look around for something or someone to attack,
and at some point we see the judge. I'm Michael Lewis,
(39:05):
thanks for listening to Against the Rules. Against the Rule
is brought to you by Pushkin Industries. The show is
produced by Audrey Dilling and Katherine Giredo, with research assistance
from Zoe, Oliver Gray and Beth Johnson. Our editor is
Julia Barton. Mia Lobell is our executive producer. Our theme
(39:28):
was composed by Nick Brittel, with additional scoring by Seth Samuel,
mastering by Jason Gambrel. Our show was recorded by Tofa
Ruth at Northgate Studios in Berkeley. Special thanks to our founders,
Jacob Weisberg and Malcolm Gladwell.
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