I am a theoretical physicist and currently Director of 
July 08, 2005
Undermining faith in the judiciary
I have always believed that people tend to behave better than one might expect them to when placed in positions of trust where high standards of behavior are expected of them. One particular kind of occupation exemplifies my belief, and that is judges.
The public expects members of the judiciary to act according to higher standards than the rest of us and I think that this expectation generally tends to be fulfilled. I believe that whenever someone enters a profession that has a noble calling, the very nature of the office tends to produce an ennobling effect.
This is particularly so in the case of the higher levels of judiciary. A person who becomes a Supreme Court judge, for example, is well aware that he or she is occupying a select position of great trust and responsibility, and I cannot help but believe that this will rub off on that person, making him or her strive to be worthy of that trust. This does not make them superhuman. They are still subject to normal human weaknesses and failures. They may still make wrong decisions. But I think that in general they behave better by virtue of occupying those positions than they might otherwise, and try to live up to the standards expected of them.
But this works only if the judges feel they are entering a noble calling and that they are expected to live up to it. If the prestige and the dignity of the judiciary is undermined by treating judges as if they were just political hacks, then they will behave accordingly. This is why I view with concern attempts by people, especially political leaders, to undermine faith in the judiciary. There are two ways in which this happens.
The first way is to personally attack judges whenever a decision does not go the way they wanted it to go. This tendency has accelerated in recent years in the US, as can be seen by the ugly venom heaped on the Florida judge in the Terry Schiavo case. We have seen similar invective hurled at judges when they have ruled in ways that people have not liked on hot button issues, ranging from First Amendment cases involving religion to flag burning to abortion. The judges have been decried as being "judicial activists" and worse.
The second way to undermine the judiciary is by clearly seeking to appoint judges precisely because they have a particular political agenda, and not because they display the intellect and independence of thought that a good judge should have.
Sri Lanka again offers an unfortunate precedent for this degeneration. It used to have a fairly independent judiciary whose members were nominated by a Judicial Services Commission, whose members were at least one step removed from direct political influence. It was expected that the JSC would nominate people who had serious credentials and hence there was the belief among the general public that judges were, on the whole, impartial although individual judges here and there may have been suspect. But again beginning in the 1970s, the government started to severely criticize judges who ruled against the government, even sending mobs to demonstrate in front of judges' homes and try to intimidate them.
After that, it was only a short step to create a more overtly political process for the selection of judges, in order to ensure that decisions would be more acceptable to the government. Despite this, the ennobling effect that I spoke of earlier helped to make the judges better that one might expect, but it was a losing battle. When I was in Sri Lanka last month, I was told that faith in the impartiality of the judiciary had been badly undermined by the cumulative effects over the years of such negative policies.
This is a real pity because this kind of credibility, once lost, is hard to regain. Undermining the judiciary in this way a dangerous trend for any nation that values the rule of law. When you undermine faith in the impartiality and honesty of judges, you are just one step away from mob rule.
As I said above, the US seems to have already started down this unfortunate road. The upcoming battle for the Supreme Court vacancy created by the retirement of Sandra Day O'Connor will provide a good indication of the shape of things to come. It will be unfortunate if people focus on the nominee's views on specific issues. I would much rather see an examination of whether the person shows a scholarly mind, whether he or she has shown an independence of thought, whether the person bases judgments and reasoning on evidence and on universal principles of justice and the constitution, whether the person shows compassion and understanding of the human condition in all its complexity, whether he or she listens to, understands, and appreciates the arguments of even those whom he or she rules against, and appreciates that the judiciary is the ultimate safeguard of rights and liberties for individuals against the massive power of governments and corporations. In other words, does the person have what we might identify as a "judicial temperament."
If you speak with lawyers, they can often identify those judges whom they respect, even when those judges rule against the lawyers. Identifying what makes judges respected despite their specific opinions on specific cases is what the discussions about selecting a new Supreme Court justice should be all about.
But if the discussion ends up being (as I fear they will) about the nominee's views on the Ten Commandments, abortion, gay marriage, flag burning, and the like, then we will be continuing to cheapen the whole Supreme Court.
The nature of the nominee and the discussion around it will tell us a lot about how we will be viewing the judiciary in the days, and perhaps generations, to come.
POST SCRIPT
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Comments
Interesting, sobering analysis. I made the mistake of signing up for a bunch of progressive email lists a while ago, and the recent rush of "Save Roe!" emails have really been annoying me, but I couldn't figure out why. I think this is exactly why.
But what I really want to say is this:
1) If your postulate about trust and feedback loops is right, this may explain why American politics sucks: people elect politicians expecting them to be evil and stupid, and then the politicians dutifully live out those expectations. What does this suggest about political cartoons, the Daily Show, and other media that aim to take down politicians? Do you think they're actively damaging to the political culture? (It would be a pity; the Daily Show is one of the funniest things on TV.)
2) Again, if you're right about trust, there has to be some way we can harness this in normal life in the service of maintaining civil society.
3) Maybe the effect here, if it's real, is about reciprocity: people don't like to cheat other people unless they expect that they're going to be cheated; and so when the respect of others comes gratis, maybe that encourages similarly respectful behavior. I'm not a social psychologist, so I'm just kind of talking out of my hat here ;).
Erin,
I think that when you have elections for some position, it becomes hard to maintain that high level of expectations. This is specially so when the election system requires large amounts of money.
So I think that the legislatures at state and national levels are doomed to not be held in great respect. And it may not be a bad thing for those institutions to be subject to ridicule and humor. Such offices are designed to be partisan.
But with the judiciary, we expect different things. We do not expect them to be partisan hacks. This is why I am not too comfortable with the election of judges. I tend to prefer a system where elected officials appoint a separate body whose task is to nominate people of high quality to the bench. By having a bit of separation from the rough and tumble of electoral politics, we maintain the citizen oversight of the judiciary while ensuring that judges do not feel obligated to any particular group for their position. This makes them more likely to be ondependent minded.
I do agree with you that giving respect gratis has a beneficial effect, though I cannot support this with any studies, either. It just seems to me to be a good thing to do.
Your comments on judicial temperament make sense, but I'm not sure how well they can actually be applied. Plenty of candidates on the left and right could be easily argued to have a good judicial temperament, and still come to opposite conclusions on any number of issues. Any politician selecting a candidate that does not have a record of ruling in favor of their party's pet issues will quickly find themselves far less popular among those they are supposed to represent (and presumably their supporters), much like Zel Miller became especially loathed by the left during the last presidential campaign, and Arlen Specter has lost much respect from the right for his uncooperative stance on judicial nominees ( most recently: http://tinyurl.com/9tpcy , but he also offended the right earlier this year with a comment about how they should not expect to get any pro-life nominees past him, or something like that).
Tom,
I think that in general I have more faith in judges appointed by groups of people slightly removed from direct politics than those under the present system. I think collective decisions on matters like these are better than individual ones.
What I would like to see is some board (which could be appointed by the President and/or Congress) which screens nominees and sends them up for approval by the President and the Senate. This way, the elected people have some say in who becomes judges, but there is a better chance that people with the proper judicial temperament become nominated as judges.
It is quite possible that the people who become judges this way will make rules that I disagree with, but that is the price I have to pay. I would prefer a judge who has a reputation of impartiality and judicial thoughtfulness who occasionally (and even often) makes decisions I disagree with, to one who is a hack who agrees with me all the time. In the long run, the former system is better for all of us, though in the short run, the latter works better for me personally.
It all goes back to Rawl's theory. We have to set up a good process that we can all agree is fair, and then accept the results of that process.