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Personal background bias

Anyone who says a judge’s background and experiences do not influence his or her decisionmaking on the bench is either a fool or a liar.

Contradicting the caricatures of judicial decisionmaking offered up by critics of Judge Sonia Sotomayor, judges themselves have long acknowledged that they are not simple deciders of fact and law, untouched by any human consideration. Anticipating the findings of modern psychology by nearly a century, Justice Oliver Wendell Holmes confessed in 1881, “The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudice judges share with their fellow men, have a good deal more to do than the syllogism in determining the rules by which men should be governed.”

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In trying to rally public opinion against Judge Sotomayor, her opponents have attempted to delegitimize the influence of a judge’s background on his or her opinions, setting a standard for judicial decisions that judges themselves recognize is absurd.

Judge Richard Posner, a card-carrying conservative and Reagan appointee to the federal bench, labeled that standard “self-deception.” “A judge,” he wrote, “is more comfortable believing his decisions are compelled by ‘the law’ — something external to his own preferences — than by his personal ideology, intuitions, or suite of emotions … The tendency is paradoxically most pronounced at the Supreme Court level, the paradox being that it is the most political court.”

To deny the influence of experience, emotion and background on judicial decisions is to deny that judges are human. Psychology recognizes that we are all endowed with two separate but intertwined decisionmaking processes. One is spontaneous, intuitive, emotional and fast. The other is deliberative, rule-governed, slower.

Nobel laureate Daniel Kahneman and Shane Frederick number these two systems and explain their relationship: “System 1 quickly proposes intuitive answers to judgment problems as they arise and System 2 monitors the quality of these proposals which it may endorse, correct or override.” More often than not, though, the affective, intuitional system is controlling.

These decisionmaking systems are grounded in the biology of the human brain. Our genetic inheritance, our cultural environment and our life experiences literally wire our neurons together in unique ways, giving rise to our thoughts. Our backgrounds are biologically imprinted on our decisions. Since they are human beings and not automatons, judges are unable to break free of their biology and are thus unable to prevent their life experiences, or their genes, from affecting their decisions.

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As we might therefore expect, judges with different backgrounds do make different decisions. Careful statistical analysis reveals that if all other factors, including partisanship, were held constant, being female increased the probability that a judge found for the plaintiff in sexual harassment cases from 22 percent to 42 percent and from 17 percent to 28 percent in sex discrimination cases. Adding a female judge to a panel led to similarly increased likelihoods that male judges would find for the plaintiff. Better decisions? Wiser decisions? We have no way of knowing — but different decisions, to be sure.

Similar analysis of age discrimination cases found, across party, the youngest cohort of judges about half as likely to find for the plaintiff as the oldest judges. Here age mattered, but gender did not. In criminal proceedings, white judges also mete out harsher penalties on average to African-American defendants than to whites.

Psychology and biology predict that both nature and nurture will affect our decisions, while real-world experience affirms that fundamental truth.

Neither deception nor delusion about the nature of judicial decisionmaking will advance the cause of justice, but recognizing the truth may well help set us free, and put a distinguished jurist on the court.



Mellman is president of The Mellman Group and has worked for Democratic candidates and causes since 1982. Current clients include the majority leaders of both the House and Senate.