In the debate about President Biden’s Supreme Court nomination for Judge Ketanji brown Jackson, racial concerns played an important role. Biden’s campaign promise not to nominate any black woman has led to Republicans attacking it. However, other nominations have had important parts in race and gender issues such as Ronald Reagan’s campaign promise (resulting in Sandra Day O’Connor’s nomination) or Trump’s promise that he will nominate Ruth Bader Ginsburg (resulting in Amy Coney Barrett’s nomination).
Because of the controversy surrounding the case, it is worth noting the words of KBJ about race and judging during her confirmation hearing to the US Court of Appeals DC Circuit seat.
Texas GOP Sen. John Cornyn… asked Jackson about professional diversity and race.He said her experience as a trial judge would be a “very important qualification” and praised her “impressive” background…..
Cornyn stated that “since our Democratic counterparts seem to be placing such much emphasis on racism”, he wanted to find out more. Judge Jackson: “What part does race play in your decision to be the judge that you are and will become, Judge Jackson?”
Jackson replied without skipping any beat that Jackson didn’t believe race played a part in his ability to be a judge.
She continued, “I look at the arguments and facts, and the law. I am methodically and intentionally putting aside any personal views or other undesirable considerations. I think that race is the wrong thing to add into my assessment of a case.”
“I believe that my diverse professional background, which includes my experience in district courts, would be of value to the court of appels judges,” she stated.
Cynics could think that KBJ said whatever was necessary to confirm herself. There are plenty of ways that she could have avoided the question, without putting her chances at confirmation in jeopardy. However, it is possible to say “inappropriate” without implying that race discrimination was inappropriate. She could, for example, have stated that the background of a judge inevitably influences her decisions. That is why diversity on the bench is so important. Therefore, I believe that she was truly meaning what she said.
Many may not agree with her sentiments, but they are still a bit optimistic. Many judges are unable to completely remove themselves from inappropriate considerations, including their ethnic or racial background. This might cause them to sympathize more with certain litigants.
Even if this level of impartiality can’t be achieved perfectly, it is still something to aim for. We can achieve greater success than we might think. History shows us.
In a 2009 article, I discussed some reasons. LA Times debate with prominent constitutional law scholar Erwin Chemerinsky, at the time of Sonia Sotomayor’s nomination to the Supreme Court. Although the details of President Obama’s comments are no longer relevant, I believe the larger point that I made is still pertinent:
Obama said that judges should have “empathy” to see what it is like to be poor, African American, gay, disabled, or otherwise disadvantaged. These judges can make legitimate decisions about these issues if they feel empathy. The same applies to the much larger percentage of jurists that are able and willing to sympathize with the experiences of rich, poor, gay, straight or disabled people. Minorities and the poor will not benefit if we place less emphasis on empathy than the norm of impartiality.
Many argue that the ideal of judicial impartiality may be a pipedream. It is true that empathy cannot be totally eliminated from judging. However, we need to work towards reducing its importance rather than increasing it.
It is not impossible to achieve this goal. In the past century, judges and others discriminated against Irish American or Italian American litigants. Today such prejudice is rare in our society, and it rarely impacts judicial decisions. Today’s average white jurist is more likely to be fair with African American litigants today than she was 40 years ago. This is despite the fact that racism has not been completely eradicated. Numerous 1st Amendment rulings have been issued by judges protecting radical Islamist, fascist or communist speech against censorship. However, these judges may not have any empathy for the advocates of such unpopular ideologies. That is a major improvement over the first half of the 20th century….
Judges shouldn’t make decisions based on empathy, but that doesn’t mean they must ignore the “real-world” consequences of their decisions. Many cases require judges to make empirical judgments…. Judges should not feel empathy for litigants, but systematically consider the evidence.
Sometimes, relying on empathy can actually hinder accurate assessment of the implications of judicial decisions. Empathy tends to lead us to place our focus on someone who is clearly visible and understands, but has been subjected or suffered from some type of harm. It can be difficult, or even impossible, to empathize with people who are not visible and may have been affected by unintended or indirect consequences of a decision. My own practice in property law shows me that judges are able to empathize well with the wealthy who follow restrictive zoning laws to protect their neighborhoods’ “character”. However, it is difficult to grasp the reasons these laws are often used to exclude poor people and create housing shortages. The people barred from a community by exclusionary zoning are generally invisible to judges and impossible for them to identify, much less empathize with…. Exclusionary zoning might be constitutionally valid. Judges may have been blinded by this empathy, and have ignored its larger regional implications.