The Squirrels Are Watching

Impartial Defined

Posted in Fact and Law by andrewfong on July 14, 2009

I’m going to Berkeley Law this fall, and in an attempt to get my toes wet, spent some time going over the transcript of the Sotomayor hearings earlier today. One of the issues that came up repeatedly was whether allowing “life experiences” to affect your judgment violated the duty of a judge to remain impartial. The most experience I have with judging is high school debate, so … big grain of salt, but myinitial reaction is no, it doesn’t. To understand why, let’s step back a little bit and consider what it even means to be impartial.

Law is not math. It is subject to interpretation. When your laws are written over the course of over two hundred (occasionally turbulent) year by thousands of (occasionally boneheaded) individuals, you’re going to get contradictions, gray areas, and general stupidity.  Ideally, you’d ask the legislature to clarify, but it’s possible (probable?) that individuals within the legislature will disagree on what they meant when they wrote it. And that’s assuming the individuals are still alive and conscious.

Therefore, law cannot be impartially interpreted in the same manner that, say, a calculator impartially interprets a mathematical equation. Instead, the best a judge can do to be impartial is to be consistent and by extension, predictable.

In high school debate, a lot of judges like to pretend they’re a blank slate (tabula rasa if they want to get it on with the Latin). Bull crap. No one’s a blank slate. Every judge has baggage. Some judges have previous debate experience. Others barely speak English. Some judges are experts on the topic being debated. Others aren’t really experts on anything. That’s why (good) debaters ask at the beginning of every round, “What are your judging preferences?”

The implicit assumption behind that question is that judges are biased — that they will respond to certain arguments and debate styles more favorably than others. Yet the system mostly works, because these preferences are brought to light at the beginning of the debate and everyone has a chance to adapt.

I’m sure that’s not exactly how it works with Supreme Court Justices, but I suspect it’s pretty similar. Your life experiences will affect how you interpret the law, and not everyone will agree with Sotomayor’s intrepretation of the law. That’s fine. What’s important is that her interpretation is consistent — consistent with itself, with established precedent, and with the expressed views of the legislature to the extent possible. You could argue that her interpretation is consistently bad, but that’s a separate question from her impartiality.

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