Umpires, Empathy, and Activism: Lessons from Judge Cardozo

We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own. (1) INTRODUCTION Our national dialogue about the role of federal judges in our democratic society has devolved into a political game in which points are awarded to whomever can reduce the complexities of judging into the most oft-repeated sound bites. (2) Lawmakers on both sides of the aisle deride the opposing party's judicial nominees as activists and extremists whose personal prejudices override their allegiances to the rule of law. (3) Though much of the rhetoric about judges and judging has proven politically expedient for the politicians and interest groups engaged in judicial confirmation fights, it has been a disservice to the American public and the federal judiciary. Oversimplified talking points and buzzwords hardly explain what judges actually do, or, more importantly, what we should expect of them. (4) Two talking points have gained special traction. One is that judges should be nothing more than neutral umpires. For example, during Chief Justice John Roberts's confirmation hearings, he promised to "remember that it's my job to call balls and strikes." (5) From Capitol Hill to cable news, the analogy took hold as shorthand for the idea that administering justice is a purely objective task, one in which life experiences and personal conceptions of justice play no role. Despite, or perhaps because of, its simplicity, the judge-as-umpire construct gained political popularity and became an indispensible page in the confirmation playbook. (6) A second, oft-repeated talking point is that empathetic judges are dangerous, activist judges. No sooner had President Barack Obama uttered the word "empathy" in connection with judicial appointments than the word took on a life of its own. (7) It became a code word for judicial overreaching, and it served as the blank slate onto which politicians painted doomsday scenarios of a judiciary run amok. That one word became so politically charged that Supreme Court nominee Sonia Sotomayor went on record as distancing herself from the approach to judging espoused by the President. (8) I would like to step back from today's political rhetoric about the role of judges and the nature of judging. Far back. Back to 1921, when then-Judge, and eventual Supreme Court Justice, Benjamin Cardozo delivered a series of influential lectures on judges' decisionmaking processes. (9) Judge Cardozo's writings are widely--and properly--regarded as authoritative on this subject. (10) He effectively discredited the legal formalists' view of the law as a closed system of preordained rules that were logically to be discovered and mechanically to be applied. (11) Notre Dame Law School is to be commended for hosting a colloquium to remind us of Judge Cardozo's rightful place at the fore of our modern discussions about the judicial function and for encouraging us to reflect meaningfully on the role of judges in our democratic system. Judge Cardozo recognized that the law is not always a strike zone; that the facts of life are not always pitches; and that judges are not always umpires making objective calls between balls and strikes. He acknowledged that there are some areas in which the law is unclear or undeveloped and others in which reasonable jurists will disagree about its proper application to the facts. (12) In these areas of the law, where much appellate litigation and most Supreme Court litigation takes place, judges must exercise judgment and discretion. Yet the judge-as-umpire construct, as recently deployed in political debate, fails to recognize the existence of either judgment or discretion. Only after we acknowledge that complications do exist within the law--that the act of judging defies simple metaphors and labels--may we engage in a serious discussion about what should be expected of our judges. Time and again, Judge Cardozo acknowledged that judges should be true to their sense of justice, shaped as it is by their own life experiences. …