Personal experience has no role in being a judge. Or shouldn’t. During a recent news talk show a commentator pointed out that Judge Ruth Bader Ginsburg once said that her colleagues on the Supreme Court could not understand how a 13 year old girl would feel about being strip-searched as none of them had ever been a 13 year old girl.
This is true in a literal sense and is a good point for a psychologist. It is, or should be, irrelevant for a judge. Most judges have, I presume, never caught their husbands (or wives, as the case may be) cheating on them, and therefore, using Judge Ginsburg’s logic, can’t understand the feelings of the husband (or wife) who shot the adulterer.
But, in such a case what society should insist is that the judge know the legal definitions of temporary insanity, premeditation, manslaughter and whatever other shadings that particular jurisdiction has cared to delineate; his or her personal experiences or lack thereof should have no bearing on the outcome.
To make this point more clear, if a judge is sitting on a particularly bitter divorce case is it helpful to have a judge who has recently been involved in his or her own bitter divorce? It may be of benefit for one of the two members of the former couple. But, if so, it most certainly won’t be of benefit to the other.
As a society we most certainly should not want such a situation in our courts for any reason. If we accept the argument that judges with specific personal experience give better decisions relative to certain cases, we by definition accept that worse decisions will be made by those judges who lack relevant experiences. In fact, to start down the road that such personal experience is a plus would eventually lead to the conclusion that if your case were heard by a judge without such personal experience it would be unfair. Instead of an impartial court we would be insisting on partial or biased courts.
On the contrary, the role of a judge is, to quote, Judge Oliver Wendell Holmes “to apply the law.” To apply the law was clearly defined by another Supreme Court Justice, Joseph Story: “The first and fundamental rule in the interpretation of all instruments is, to construe them in the sense of the terms, and the intentions of the parties.”
For a judge to act otherwise is to change the law, not to apply it. And under the US Constitution and the constitutions of the states only the legislatures have the authority to change the law.
In other words, a judge is to apply the law, not his or her experiences, and to do so from the perspective of those who drafted the law. Whether a judge is male or female, young or old, rich or poor, European, Asian Latin, Indian, Aleut, Democrat or Republican, liberal or conservative, atheist or Christian or Jew or Muslim or Hindu or Buddhist, tall or short, left handed or right handed should be absolutely and totally irrelevant. The judge must study the original intentions of the drafters, and apply that knowledge to the case at hand, irrespective of any personal experience which would predispose him or her to any particular decision. Acting otherwise is to provide not an impartial decision but a partial, that is, biased decision. Do we really want biased law in our courts?
As for the idea that you need to experience something to be able to judge it, as a friend of mine once said, you don’t need to be a dog to judge the dog show.
This is true in a literal sense and is a good point for a psychologist. It is, or should be, irrelevant for a judge. Most judges have, I presume, never caught their husbands (or wives, as the case may be) cheating on them, and therefore, using Judge Ginsburg’s logic, can’t understand the feelings of the husband (or wife) who shot the adulterer.
But, in such a case what society should insist is that the judge know the legal definitions of temporary insanity, premeditation, manslaughter and whatever other shadings that particular jurisdiction has cared to delineate; his or her personal experiences or lack thereof should have no bearing on the outcome.
To make this point more clear, if a judge is sitting on a particularly bitter divorce case is it helpful to have a judge who has recently been involved in his or her own bitter divorce? It may be of benefit for one of the two members of the former couple. But, if so, it most certainly won’t be of benefit to the other.
As a society we most certainly should not want such a situation in our courts for any reason. If we accept the argument that judges with specific personal experience give better decisions relative to certain cases, we by definition accept that worse decisions will be made by those judges who lack relevant experiences. In fact, to start down the road that such personal experience is a plus would eventually lead to the conclusion that if your case were heard by a judge without such personal experience it would be unfair. Instead of an impartial court we would be insisting on partial or biased courts.
On the contrary, the role of a judge is, to quote, Judge Oliver Wendell Holmes “to apply the law.” To apply the law was clearly defined by another Supreme Court Justice, Joseph Story: “The first and fundamental rule in the interpretation of all instruments is, to construe them in the sense of the terms, and the intentions of the parties.”
For a judge to act otherwise is to change the law, not to apply it. And under the US Constitution and the constitutions of the states only the legislatures have the authority to change the law.
In other words, a judge is to apply the law, not his or her experiences, and to do so from the perspective of those who drafted the law. Whether a judge is male or female, young or old, rich or poor, European, Asian Latin, Indian, Aleut, Democrat or Republican, liberal or conservative, atheist or Christian or Jew or Muslim or Hindu or Buddhist, tall or short, left handed or right handed should be absolutely and totally irrelevant. The judge must study the original intentions of the drafters, and apply that knowledge to the case at hand, irrespective of any personal experience which would predispose him or her to any particular decision. Acting otherwise is to provide not an impartial decision but a partial, that is, biased decision. Do we really want biased law in our courts?
As for the idea that you need to experience something to be able to judge it, as a friend of mine once said, you don’t need to be a dog to judge the dog show.
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