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On April 13, 2017, an article titled Do judges contribute to injustices? A conversation with Judge Jed Rakoff was published in the American Bar Association's ABA Journal. His conversation was with Joel Cohen, a litigation partner at Stroock & Stroock & Lavan LLP and author of Broken Scales: Reflections on Injustice.
"Jed Rakoff has been an adjunct professor at Columbia Law School since 1988, and has served since 1996 as a federal district judge for the Southern District of New York. Judge Rakoff earned a B.A. from Swarthmore College in 1964, an M.Phil. from Oxford University in 1966, and a J.D. from Harvard Law School in 1969."
During the interview, a number of very important points were made about our legal system, which are rarely considered or discussed.
As Judge Rakoff says, "We have an adversary system, and the judge’s main job is to apply the law and find the facts (or, if the jury finds the facts, to apply the facts to the law.)"
"Conflicts of any type can be resolved through either force or diplomacy. In legal disputes, parties try to exert force on each other through the courts. 'We call it an adversary system, but a better term would be a coercion system. The parties bash each other in order to persuade the judge to coerce the other person to do something they do not want to do,' says family court Judge Bruce Peterson of Hennepin County, Minneapolis. The threat of having a judge coerce “a person to do something they do not want to do” unless they agree to certain terms, is itself coercive.
Diplomacy, on the other hand, works through mediation and other forms of consensual dispute resolution (CDR). As the name implies, the parties to such processes resolve their conflicts through mutual consent, without obtaining such consent through coercion."
In the past, I've explained the judge's main job as follows:
"'Justice Under Law' refers to legal justice, which is based upon legally relevant and admissible evidence, which may differ considerably from the facts. Judges then make credibility determinations (regarding the parties, witnesses, and evidence), factual findings, exercise their judicial discretion, and apply and interpret the law."
Judge Rakoff then says, "I think, however, that judges do have a particular role to play in the broad allocation of powers of our Constitution in protecting the rights of individuals and minorities."
Interestingly enough, that is exactly why I published the article Should Supreme Court Justices Believe in Democracy? Neil Gorsuch's comments indicate that he is extremely biased and anti-democracy. As I explained in that article, Justice Gorsuch, the newest member of the United States Supreme Court, does not believe that judges should protect the rights of individuals and minorities.
Rakoff then says the following:
"I think too many courts have been too quick to leave unchallenged—and even unthought about—certain kinds of evidence that historically have been produced in criminal cases and that should have been subjected to greater scrutiny. For example, a great deal of forensic science has now come under scrutiny from the scientific community. In 2009, the National Academy of Sciences published a report that was highly critical of most forensic science other than DNA. And this included things well-regarded by many people—fingerprinting, hair analysis, bite-mark analysis, arson analysis and so forth. But before and even after that report, very few judges critically analyzed the forensic science that was being presented to them.
Most lawyers have very little scientific background. A judge, it seems to me, should educate himself, and if he thinks the science is doubtful, make some inquiry."
On September 2, 2016, the ABA Journal published an article on just that topic, titled Validity of forensic analysis routinely used in criminal trials is called into question. That article states in pertinent part as follows:
"The lack of scientific rigor 'is not just a hypothetical problem but a real and significant weakness in the judicial system,' the report said.
The report suggested more testing is needed to verify bite-mark, footwear, gun and tool-mark evidence, according to the Wall Street Journal. Evidence that did meet standards for reliability included DNA analysis of single-source and simple mixture samples, as well as fingerprint analysis. The report did say, however, that it would be appropriate to inform jurors about false positives found in two studies of fingerprint analysis."
What Rakoff is addressing has to do with what is known as judicial bias, a topic about which I've written a great deal.
"Regardless of whether we're talking about trial judges, appellate court judges or Supreme Court Justices, their decisions are based upon their personal biases, beliefs, assumptions and values, which are formed as a result of our personal backgrounds and life experiences. We all have personal biases, beliefs, assumptions and values. The question is how much our lack of self-awareness is skewing our perception of things.
Our personal backgrounds have very much to do with our parents and how they raise us. Our life experiences have to do with everything we experience in our lifetime, including people we befriend, schools we attend, courses we take, books we read, our sources of news, etc. Ultimately, our life experiences have very much to do with our personal choices in terms of what we do, if anything, to try and broaden our worldview. If our parents didn't teach us to see things from other people's perspectives, we either need to take it upon ourselves to learn such things or we live in a false reality that our perspective is the only perspective."
I first wrote on this topic in a blog titled Judicial Bias - A Variable That Is Often Overlooked in Family Law Litigation, which was later edited down significantly for my Psychology and Family Law column in the San Gabriel Valley Psychological Association's Newsletter, which was titled Judicial Bias in Family Court.
Immediately following Rakoff's comment regarding the need for judges to educate themselves, Cohen said, "Justice Felix Frankfurter once wrote, 'There comes a point where [judges] should not be ignorant as judges of what we know as men [and women].' So when judges do decide to be 'ignorant,' using his word, aren’t they contributing to the injustice?"
Judge Rakoff replied as follows: "I think they are. Not wittingly. I think no judge sets out to do an injustice …. The judge should be bringing an objective point of view to the situation."
There are too many examples of judges behaving badly for me to believe that "no judge sets out to do any injustice"; however, I would agree that Rakoff's belief holds true for the vast majority of judges. For goodness sake, just yesterday, I read an article published in the ABA Journal titled Lawyer pleads guilty in $550M disability fraud scheme, admits bribing administrative law judge. Does anyone really believe that the judge who that lawyer bribed by paying "about $10,000 per month for about six years beginning in late 2004" didn't set out to do any injustice?
Irrespective, there is no question that "the judge should be bringing an objective point of view to the situation." Since judicial bias significantly interferes with judges' abilities to perform the duties expected of them, they should do anything and everything possible to reduce their biases.
"Assuming judges and justices are willing to acknowledge the fact that they are human and that all humans are biased, 'a new study suggests that by simply putting ourselves in another person’s shoes, we can significantly reduce our unconscious biases—and significantly improve our real-world interactions with people who look different from us.'
Doing so involves empathy, which 'can be a transformative tool for deconstructing unconscious biases and building understanding between people of different backgrounds.'"
Rakoff then gives three reasons for the lack of judicial objectivity.
First, he explains that "many judges, and in particular state judges, are also overburdened and so their idea is to get the case off their docket—finish it."
Along those lines, on April 1, 2017, the ABA Journal published an article titled Legal logjam in immigration court grows to more than 540,000 cases. When judges are overwhelmed, how can we expect them to have the time to decide not "to be 'ignorant'" about that which they don't know?
As stated in the ABA article, one of the reasons why judges are overwhelmed is inadequate funding. However, the elephant in the room has to do with the reason the court system is so overwhelmed in the first place. As many countries around the world have realized, the answer lies in the misuse of that system. As such, they are increasingly changing the default process for addressing legal disputes from litigation to mediation.
Unfortunately, in the United States, we prefer to throw money away in an effort to address symptoms, while ignoring the actual cause of problems. I've published a great many articles on this subject, including Why the US Family Law System Is Barbaric, The Greek Comedy We Call Litigation, Litigation Should Come with a Warning, and I Call Foul on the Media’s Coverage of Divorce and Conflict in General.
Judge Rakoff states the following as a second reason for the lack of judicial objectivity:
"I think that many judges see too many cases that are alike, and therefore they assume that the next case is just like the other 55 they’ve seen. So they are not as open to seeing that this case might be different. The Innocence Project exonerations are filled with examples of that—where judges were totally blind to suggestions that this particular defendant might be not guilty, or might not be as guilty as others in cases that the judge had seen before."
In other words, he's once again addressing the issue of judicial bias.
His third explanation "is that a great many judges are former prosecutors and very few are former defense counsel." This is yet another example of judicial bias. In this instance, Rakoff explains himself as follows:
"Judges who are former prosecutors are more inclined to accept what current prosecutors before them are doing....
I’ll give you an example. Judge Louis Pollak wrote a decision about 15 years ago, before the National Academy of Sciences report came out. It was a case of fingerprinting and, sua sponte, he applied the Daubert standards, and he found that fingerprint analysis would not pass a Daubert test. He was attacked not only by prosecutors, but by fellow judges. I remember discussing it with a judge in my court, someone whom I respect but who was also a longtime prosecutor, and he was outraged. He said, 'Have you read about this judge down at the Eastern District of Pennsylvania who said that fingerprinting is not good? How could that be? We’ve been doing that for a hundred years. This is ridiculous.' I think that was symptomatic of an attitude that many judges have when the ways that they did things as prosecutors somehow come into question."
Rakoff then explains why he believes that although "judges are in a better position than literally anyone else to speak out on these issues given their experience on the bench, many are unwilling to do it." In that regard, he said the following:
"I think what is often overlooked, is that the judicial canons of ethics authorize judges to speak out publicly on matters of importance to the administration of justice and the development of the law. … I think that many judges have the view that it detracts from the public image of the judiciary: unlike political figures, we should be remote; we should be super-cautious. And there’s something to that. There’s a certain amount of reticence that is appropriate. And a second reason is, to be frank, judges who do speak out are spoken of behind their backs by their colleagues as publicity hounds."
I agree completely with Judge Rakoff. However, based upon my experience this applies equally well to lawyers. I know this all too well because I've lived it. While I may not have been called a "publicity hound", a great many of my colleagues bad mouth me behind my back (and sometimes to my face) as nothing more than a self-promoter. Why would most people want to provide valuable information from which people can learn, when they are treated so poorly as a result?
Then, Rakoff circles back around to judicial bias by saying, "Every judge should have a certain recognition, having seen the adversary system play out, that what you may be certain about could be dead wrong."
As I've said, "in order to provide equal justice under law, judges must develop empathy."
Judge Rakoff then addresses a point that many people fail to grasp, which is that laws are not necessarily fair, ethical or moral. In fact, on March 22, 2017, I gave a three hour presentation on empathy at a law school mediation class. When I spoke with the professor immediately following the presentation, he commented that the students failed to pick up on that fact that laws can be unethical and immoral and that he would need to address that with them the next time the class met.
What Rakoff said in that regard is as follows:
"The hardest question, which I don’t think I’ve ever had to face, would be where I felt the law required me to do something that was totally immoral and unjust—that just could not be defended on any basic moral plane. And I think at that point, resignation is the right answer, not doing something rogue."
This dilemma was addressed in Pew Research Center's released groundbreaking survey of nearly 8,000 sworn police officers who work in departments around the U.S. with at least 100 officers. The study stated as follows with regard to moral dilemmas:
"The situations police face on the job can often present moral dilemmas. When asked how they would advise a fellow officer in an instance where doing what is morally the right thing would require breaking a department rule, a majority of police (57%) say they would advise their colleague to do the morally right thing. Four-in-ten say they would advise the colleague to follow the department rule. There’s a significant racial divide on this question: 63% of white officers say they would advise doing the morally right thing, even if it meant breaking a department rule; only 43% of black officers say they would give the same advice."
That being said, accusations of judicial activism or judges going rogue must be taken with a grain of salt for the reasons stated by Erwin Chemerinsky in Symposium: A landmark victory for civil rights. Erwin Chemerinsky is the Dean and Distinguished Professor of Law and the Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law. With regard to judicial activism, he said the following:
"The Court’s decision striking down laws prohibiting same-sex marriage will be regarded as a landmark ruling advancing equality and liberty. It is the Court playing exactly the role that it should in society: protecting those who have been traditionally discriminated against and extending to them a right long regarded as fundamental.
The difference between the majority and the dissents, and between the liberal and conservative commentators, is about the appropriate role of the Supreme Court in a democratic society. Not surprisingly, the four dissenting opinions all accuse the majority of undue judicial activism and usurping the democratic process. This is always the dissent’s charge when the majority strikes down a law. Of course, none of the four dissenters seemed the least bit concerned with deference to the political process or avoiding judicial activism when two years ago they all were part of the majority in striking down key provisions of the Voting Rights Act that had been passed almost unanimously by Congress and signed into law by President George W. Bush. In that case, Shelby County v. Holder, it was not even possible to tell what constitutional provision the majority thought was violated by the Voting Rights Act. None of the four dissenters were the least bit concerned with deferring to the political process when they declared unconstitutional key provisions of the Bipartisan Campaign Finance Reform Act in Citizens United v. Federal Election Commission."
It bears mentioning that there are nine Justices on the United States Supreme Court when it has no vacancies. Meanwhile, 5-4 decisions rendered by a court divided along ideological lines have the same force and effect unanimous decisions.
Meanwhile, U.S. Supreme Court Chief Justice John Roberts continues pretending otherwise.
For example, with regard to Neil Gorsuch's nomination to the Supreme Court, Roberts said the following:
"We in the judiciary do not do our business in a partisan, ideological manner. The new justice is not a Republican or a Democrat; he's a member of the Supreme Court. But it's hard for people to understand that when they see the process that leads up to it."
"Of Gorsuch's nomination and its possible effect on the public he said, 'That partisan hostility is a matter of great concern.' Roberts added it could undermine the public's appreciation of the non-partisan nature of the judicial system."
On February 3, 2016, "Chief Justice John G. Roberts Jr. said that partisan extremism is damaging the public’s perception of the role of the Supreme Court, recasting the justices as players in the political process rather than its referees."
What Roberts failed to mention "another aspect of the court’s composition that adds to the partisan perception. For the first time in generations, the court’s five most conservative members are Republican appointees, and the four most liberal were nominated by Democrats. For decades, there had been at least one liberal Republican nominee or conservative Democratic choice."
Not only is this based upon the fact that the Justices are chosen by modern day Presidents based upon their liberal or conservative ideology, but we have developed the skills to determine whose biases are so entrenched that the likelihood of their becoming more liberal or conservative is virtually nonexistent.
"Whether elected or appointed, judges come to the bench with political views – attitudes or predispositions that can lead them to rule in ways consistent with their underlying ideology. These attitudinal blinders can bias their decisions....
Overall, in instances where judges have discretion and where the issues in a case have a clear political dimension, such as employment discrimination cases, political science research suggest that attitudinal blinders can distort judicial decision making."
For the sake of our democracy, it's essential that the public believes that our judicial system is non-partisan. However, Roberts is well aware of the ideological divides on his court. He can pretend otherwise, but seeing is believing. The justices cast themselves "as players in the political process." The public is merely describing that which they observe in plain sight.
In fact, what Congress did with the Supreme Court vacancy resulting from Antonin Scalia's death was entirely based upon the reality that the justices themselves are "players in the political process."
Rather than deny reality, if Roberts believes that the partisan nature of the judicial system is undermining our democracy, then maybe he and a great many other judges and justices should work on developing empathy toward "others." Until then, as they say, "If the shoe fits, wear it."
After all, consider that Rakoff ended the conversation with the following statement:
"Judges are specially obligated to do—to be sensitive to the particular rights and issues involving individuals, even when that individual is disreputable or unpopular."
In other words, to perform their jobs properly, judges must believe in democracy. Unfortunately, Neil Gorsuch and many other judges and justices have very different views with regard to the role of judges and courts, much of which has to do with their biases.
In any event, it was incredibly exhilarating noticing that so many things about which I've written were covered in this brief article.
When judges and juries make factual findings that essentially rewrite history, the legal result cannot be just. I can't being to describe how it feels to listen as a judge shares the fictional story of events and circumstances that never actually occurred and applies the law to those facts. It is an experience you will never forget and it will haunt you until your dying day because only then will you understand why you will never again want to pursue a matter in a court of law. Legal justice is by no means the same as fundamental fairness, and when it isn't even based in reality, it is nothing less than legal injustice.
Why mediation isn't more widely used is beyond my comprehension, as is the fact that people would want to use retired judges with no little or no mediation training to "mediate", so they can get people to reach similar injustices through agreements reached in what is really "soft-arbitration." This is particularly true with regard to family law, where the research is very clear.
