Umpires, empathy, and activism: Lessons from judge cardozo

Notre Dame Law Review

Volumn 85, Issue 4, 2010, Pages 1629-1662

  Wardlaw, Kim McLane ^a  

^a NONE

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EID: 77956353184     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (254)

1. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 13 (1921).
2. See Erwin Chemerinsky, Seeing the Emperor's Clothes: Recognizing the Reality of Constitutional Decision Making, 86 B.U. L. REV. 1069, 1078 (2006) (describing the judicial confirmation process as "a useless charade");
3. Theodore A. McKee, Judges as Umpires, 35 HOFSTRA L. REV. 1709, 1716 (2007) ("[T]he increasingly polarized climate surrounding the courts makes it extremely difficult for us judges to admit either publicly or privately that we are the product of our experiences, and burdened by human frailties like all other mortals.");
4. see also Jay Reeves, Roberts: State of Union Scene Troubling', WASH. TIMES, Mar. 9, 2010, available at http://www.washingtontimes.com/news/2010/mar/ ll/roberts-state-union-troubling ("'I think the [confirmation] process is broke down.'" (quoting Chief Justice Roberts)).
5. See, e.g., 155 CONG. REC. SI 1469 (daily ed. Nov. 18, 2009) (statement of Sen. Coburn) ("I believe [Judge David Hamilton] is an activist jurist. He has shown that he will allow his personal biases and prejudices to affect the outcome of cases before him.");
6. 151 CONG. REC. S6203-O4 (daily ed. June 8, 2005) (statement of Sen. Corzine) ("IJudge Janice Rogers Brown is an] individual who would, in my view, insert her extremist legal philosophy into the courts ....").
7. See generally CHARLES PICKERING, A PRICE TOO HIGH 233 (2007) ("My personal odyssey through confirmation chaos did not reveal a reasoned and rational debate on the qualifications, integrity, or judicial temperament of nominees.").
8. See Chemerinsky, supra note 2, at 1069 ("Increasingly, the rhetoric about judicial review is at complete odds with reality.");
9. Arrie W. Davis, The Richness of Experience, Empathy, and the Role of a fudge: The Senate Confirmation Hearings for fudge Sonia Sotomayor, 40 U. BALT. L.F. 1, 7 (2009) ("Certainly, the picture of how a judge approaches his or her role is more complicated than either the questions or the responses articulated at Judge Sotomayor's confirmation hearings represent.");
10. McKee, supranote 2, at 1716 ("The phrase 'judicial activism' is itself as unfortunate as it is meaningless because it offers little more than reflexive criticism and convenient sound bites.").
11. See Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 56 (2005) (statement of Judge John G. Roberts, Jr.);
12. see also id. at 55 ("Judges are like umpires. Umpires don't make the rules, they apply them."). Although the Chief Justice did not originate the judge-as-umpire analogy, his confirmation hearings enhanced its popularity. For a thorough discussion of the history of the judge-as-umpire analogy
13. see Aaron SJ. Zelinsky, Note, The fustice as Commissioner Benching the fudge-Umpire Analogy, 119 YALE L.J. ONLINE 113,114-17 (2010).
14. Chief Justice Roberts was not the first nominee to the Supreme Court to invoke a sports analogy during confirmation hearings. During his confirmation hearing, Justice Clarence Thomas testified, "[Y]ou want to be stripped down like a runner" and "shed the baggage of ideology." Nomination of fudge Clarence Thomas to Be Associate fustice of the Supreme Court of the United States: Hearing Before the S. Comm. on the fudiciary, 102d Cong. 177 (1991) [hereinafter Thomas Confirmation Hearing} (statement of Judge Clarence Thomas).
15. See, e.g., 151 CONG. REC. S1458 (daily ed. Feb. 16, 2005) (statement of Sen. Cornyn) ("So it is important that the process I have described produces a truly independent judiciary because we want judges who are going to be umpires, who are going to call balls and strikes regardless of who is up at bat.");
16. 148 CONG. REC. 15,886 (Sept. 3, 2002) (statement of Sen. Hatch) ("[Judge Priscilla Owens] is an umpire who calls the balls and the strikes as they are. It is silly to suggest that she is pro-bat or pro-ball, pro-batter or pro-pitcher.");
17. see also Neil S. Siegel, Umpires at Bat: On Integration and Legitimation, 24 CONST. COMMENT. 701, 702 (2007) ("Politically, Roberts' use of the umpire analogy was an instant success ....").
18. Press Release, The White House, Remarks by the President on Justice David Souter (May 1, 2009), available at http://www.whitehouse.gov/the-press-office/ Remarks-By-The-President-Onjustice-David-Souter ("I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives-whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as [sic] just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role.").
19. When asked by Senator Jon Kyi, "Do you agree with [the President] that the law only takes you the first 25 miles of the marathon and that the last mile has to be decided by what's in the judge's heart?," thenjudge Sonia Sotomayor replied, "No Sir . .. [I] wouldn't approach the issue of judging in the way the [PJresident does." See Transcript: Sotomayor Confirmation Hearings, Day 2, N.Y. TIMES, July 14, 2009, http://www.nytimes.com/2009/07/14/ us/politics/14confirm-text.html?-r=l&pagewanted= all [hereinafter Sotomayor Transcript].
20. ANDREW L. KAUFMAN, CARDOZO 203-17 (1998).
21. These lectures were subsequently published. See CARDOZO, supra note 1. I refer to Benjamin Cardozo as "Judge Cardozo" throughout this Essay because he sat as a judge on the New York State Court of Appeals at the time of his lectures.
22. See RICHARD A. POSNER, CARDOZO: A STUDY IN REPUTATION 32 (1990);
23. Aharon Barak, Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy, 116 HARV. L. REV. 16, 23 n.18 (2002) (stating that Judge Cardozo's examination on the role of the judge has been a "great success" and "the first systematic effort by a judge to explain how judges reason and to articulate a judicial philosophy");
24. William Wayne Justice, Putting the fudge Back in fudging, 63 U. COLO. L. REV. 441, 445-46 (1992) (describing Judge Cardozo's work as "seminal" and stating that it had "discredited- most had thought permanently-the Legal Formalist notion of law as a set of clear abstract principles that a judge merely had to discern and mechanically apply");
25. Harlan F. Stone, Book Review, 22 COLUM. L. REV. 382, 385 (1922)
26. (reviewing CARDOZO, supra note 1) ("To those who have not passed beyond the Blackstonian concept of a law which has always existed and which needs only to be discovered by the diligent judge, this book may seem to exhibit radical tendencies. To others it will seem no more radical than science itself which seeks always by the gathering of data and their accurate interpretation to penetrate a little nearer to the ultimate truth. In this sense, the book is truly scientific in spirit and method, presenting its subject with the balance, restraint and clarity which have marked the author's distinguished service as a judge."). During her confirmation hearings, Justice Sotomayor expressed her admiration forjudge Cardozo's approach to judicial decisionmaking.
27. See Sotomayor Transcript, supra note 8 ("I'm a judge who believes that the facts drive the law and the conclusion that the law will apply to that case.... If you would ask me ... to tell you a justice from the past that I admire for applying that approach to the law, it would be Judge Cardozo."). A simple Westlaw search demonstrates the influence this work has had in both the academic and judicial fields: over 1000 judicial opinions-including almost 50 from the U.S. Supreme Court-and 2000 law review articles have cited the work.
28. See Justice, supra note 10, at 445-46 ("Judge Cardozo's efforts discredited- most had thought permanently-the Legal Formalist notion of law as a set of clear abstract principles that a judge merely had to discern and mechanically apply. Cardozo saw judgment not as a science, but as an art, and a quintessentially human one at that. Formal reason and abstract logic play their part, but judging is inevitably a creative, active, and personal enterprise." (citing CARDOZO, supra 1, at 166-68) (footnotes omitted)).
29. (citing CARDOZO, supra 1, at 166-68) (footnotes omitted)).
30. See, e.g., CARDOZO, supra note 1, at 165 ("[There are cases that] might be decided either way. By that I mean that reasons plausible and fairly persuasive might be found for one conclusion or for another.").
31. Id. at 167-68.
32. Then again, whether a batter really swung is itself often subject to dispute and may require the home plate umpire to defer to other umpires with the better vantage points. See Kenneth L. Karst, The Liberties of Equal Citizens: Groups and the Due Process Clause, 55 UCLA L. REV. 99, 138-39 ("You can't take the judgment out of judging.").
33. CARDOZO, supra note 1, at 129.
34. See 28 U.S.C. § 1332 (2006);
35. Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 267-68 (1806).
36. U.S. CONST, art. II, § 1.
37. CARDOZO, supra note 1, at 18.
38. Id. at 160. For example, in the twelve-month period ending on September 30, 2008, the Ninth Circuit resolved about 5800 cases on the merits. Of these, nearly eighty-seven percent were decided in unpublished memorandum dispositions because they were governed by clear statutory language or by precedent from the Ninth Circuit or the Supreme Court.
39. ADMIN. OFFICE OF THE U.S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS 44 tbl.S-3 (2009), available at http://www.uscourts.gov/judbus2008/ JudicialBusinespdfversion.pdf. Adherence to precedent is thus "the everyday working rule of our law."
40. CARDOZO, supra note 1, at 20. Without it, "the labor of judges would be increased almost to the breaking point."
41. Id. at 149.
42. CARDOZO, supra note 1, at 20.
43. See Lauren Collins, Number Nine: Sonia Sotomayor's High-Profile Debut, NEW YORKER, Jan. 11, 2010, at 42, 53 ("The robotic dispensation of justice is a fiction ....");
44. see also Davis, supra note 4, at 14 ("The argument that 'discretion-free'judging, devoid of the influence of one's identity or experiences, is implausible in a profession populated by human beings, and not machines, is compelling ....").
45. See LEE EPSTEIN ET AL., THE SUPREME COURT COMPENDIUM 231 tbl.3-2 (4th ed. 2007) (reporting that 58.5% of cases argued before the Supreme Court between 2000 and 2004 had at least one dissenting opinion);
46. id. at 241 tbl.3-4 (reporting that 24.1% of cases argued before the Supreme Court between 2000 and 2004 were decided by a one-vote margin);
47. see alsoTracey E. George & Chris Guthrie, Remaking the United States Supreme Court in the Courts' of Appeals Image, 58 DUKE L.J. 1439, 1463 tbl.l (2009) (reporting that, of all cases argued before the Supreme Court between 1953 and 2006, more than 30% were decided 5-4 or 6-3).
48. See, e.g., MetroPCS, Inc. v. City & County of S.F., 400 F.Sd 715, 721 (9th Cir. 2005) (recognizing the circuit split over the Telecommunications Act's "in writing" requirement);
49. Poulos v. Caesars World, Inc., 379 F.3d 654, 666 & n.3 (9th Cir. 2004) (recognizing a circuit split over whether "reliance is the only way plaintiffs can establish causation in a civil RICO claim predicated on mail fraud");
50. Santoni v. Potter, 369 F.3d 594, 598 (1st Cir. 2004) (recognizing a circuit split over whether "an arresting officer's lack of authority under state or federal law to conduct an otherwise constitutionally valid arrest constitutes an unreasonable seizure under the Fourth Amendment").
51. For example, in 2009, there were forty-three calls for en banc rehearing in the Ninth Circuit, with eighteen succeeding. Beneath the surface, many cases that are not called en banc are nonetheless the subject of impassioned debates amongst my colleagues.
52. See Carol J. Williams, A Liberal Bastion's Right Turn, LA. TIMES, Apr. 19, 2009, at Al (discussing the growing use of dissents from a denial of rehearing en banc).
53. During the twelve-month period ending September 30, 2008, the U.S. Courts of Appeals reversed district courts 2522 times. See ADMIN. OFFICE OF THE U.S. COURTS, supra note 19, at 111 tbl.B-5.
54. CARDOZO, supra note 1, at 150.
55. Collins, supra note 21, at 53;
56. see also McKee, supra note 2, at 1718 ("It just may be that the rulings of even the most respected jurists differ on such issues because they have different experiences, and different frames of reference, and therefore view the relevant legal authority through different lenses.").
57. CARDOZO, supra note 1, at 21.
58. See Chemerinsky, supra note 2, at 1077 ("So what is wrong with the myth of discretion-free judging? One harm is that the myth gready distorts the judicial selection process.");
59. id. at 1069 ("Although both [judges and umpires] make decisions, it is hard to think of a less apt analogy.");
60. McKee, supra note 2, at 1710 ("[T]he metaphor has become accepted as a kind of shorthand for judicial 'best practices,' that obscures a complex dynamic that is far more amorphous, elusive and troublesome than its simplistic appeal suggests.");
61. Siegel, supra note 6, at 701-02 ("I argue that those cases [involving integration] vividly illustrate how inapt the umpire analogy is if one takes its appeal to formalism seriously as a statement about how judges can or should execute their responsibilities in constitutional cases.").
62. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
63. McKee, supra note 2, at 1719 ("Rather than indulging the pretense that judges are merely umpires and that umpires merely 'call 'um as they see 'urn' we should accept the fact that the law is flexible enough and strong enough to accommodate a far more honest approach to adjudication.");
64. see also THE FEDERALIST NO. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961) ("[The judiciary] may truly be said to have neither force nor will, but merely judgment. . . ." (emphasis omitted));
65. cf. Diarmuid F. O'Scannlain, Must a FaithfulJudge Be a Faithless Judge?, 4 U. ST. THOMAS L.J. 157, 164 (2006) ("[W]hile there is allowance in our system for the exercise of discretion, it does not fall to the judge to second guess the lawgiver in order to bring about the judge's vision of justice or to exercise the judge's understanding of compassion, except where such discretion has been expressly delegated.").
66. Karst, supra note 14, at 138-39.
67. CARDOZO, supra note 1, at 69.
68. Id. at 70
69. quoting Géza Kiss, Equity and Law: Judicial Freedom of Decision, 9 MODERN LEGAL PHILOSOPHY SERIES 146,161 (Ernest Bruncken & Layton B. Register trans., Comm. Ass'n Am. Law Schs. ed., 1917);
70. see also INS v. Chadha, 462 U.S. 919, 978 (1983)
71. (White, J., dissenting) ("[T]he wisdom of the Framers was to anticipate that the Nation would grow and new problems of governance would require different solutions. Accordingly, our Federal Government was intentionally chartered with the flexibility to respond to contemporary needs without losing sight of fundamental democratic principles.");
72. RDOZO, supra note 1, at 14-15 ("Interpretation is often spoken of as if it were nothing but the search and the discovery of a meaning which, however obscure and latent, had none the less a real and ascertainable pre-existence in the legislator's mind. The process is, indeed, that at times, but it is often something more.").
73. Stephen Reinhardt, The Role of Social fustice in fudging Cases, 1 U. ST. THOMAS L.J. 18, 23 (2003).
74. See Chemerinsky, supra note 2, at 1069 ("Interpretation of an ambiguous statute or a constitutional provision's broad, open-textured language is also the judge's legal product.");
75. Siegel, supra note 6, at 708 ("[M]y primary concern is that Supreme Court Justices cannot even agree on the basic contours of the 'strike zone' when it comes to such fundamental matters as whether the equal protection clause presumptively prohibits racial classifications or instead targets practices of racial subordination. That is because the constitutional text itself is indeterminate ....").
76. U.S. CONST, amend. XIV.
77. CARDOZO, supra note 1, at 76.
78. Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
79. Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
80. See, e.g, Lawrence v. Texas, 539 U.S. 558, 578-79 (2003).
81. See Christopher v. Harbury, 536 U.S. 403, 417 (2002) (recognizing the "obligation of the Judicial Branch to avoid deciding constitutional issues needlessly");
82. Burke v. Barnes, 479 U.S. 361, 363 (1987) ("Article III of the Constitution requires that there be a live case or controversy at the time a federal court decides the case ....").
83. But see Citizens United v. F.E.C., 130 S. Ct. 876 (2010);
84. Bush v. Gore, 531 U.S. 98 (2000). As Justice Stevens recendy stated in an interview, referring to Citizens United, "If it is not necessary to decide a case on a very broad constitutional ground, when others are available, then doesn't that create the likelihood that people will think you're not following the rules?"
85. Jeffrey Toobin, After Stevens: What Will the Supreme Court Be Like Without Its Liberal Leader?, NEW YORKER, Mar. 22, 2010.
86. See, e.g., Kyllo v. United States, 533 U.S. 27, 40 (2001) (holding that police use of a thermal imaging scanner on an individual's home constituted a search under the Fourth Amendment).
87. See, e.g., Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 546-47, 557 (1985)
88. (overruling Nat'l League of Cities v. Usery, 426 U.S. 833 (1976), and holding that state immunity from federal regulation did not depend on whether the governmental function was "integral" or "traditional").
89. Boumediene v. Bush, 128 S. Ct. 2229, 2262-75 (2008) (finding that Congress's attempt to strip federal courts of habeas corpus jurisdiction over claims from Guanta- namo Bay detainees effected an unconstitutional suspension of the writ of habeas corpus).
90. 531 F.3d 1071 (9th Cir. 2008) (en banc)
91. affd in part, rev'd in part, 128 S. Ct. 2633 (2009).
92. Id. at 1076-77.
93. Id. at 1079
94. quoting New Jersey v. T.L.O., 469 U.S. 325, 342 (1985)).
95. Id. at 1075-76.
96. Id. at 1076-77.
97. Id. at 1074-75.
98. Id. at 1075.
99. Id.
100. Id.
101. See The Supreme Court 2008 Term-Leading Cases, 123 Harv. L. Rev. 163, 169 (2009) [Hereinafter Leading Cases] ([Redding] Was Challenging On Another, More Subtle Level: Law Alone Could Not Answer The Question Whether The Search Was Reasonable.").
102. 444 F.3d 1118 (9th Cir. 2006).
103. Id. at 1123 (Quoting La., Gal., Mun. Code § 41.18(D) (2005)). This Opinion Was Subsequendy Vacated Following The Parties' Setdement Of The Action.
104. See Jones V. City Of L.A., 505 F.3d 1006 (9tii Cir. 2007).
105. U.S. Const, Amend. Viii.
106. 370 U.S. 660 (1962).
107. 392 U.S. 514 (1968).
108. See Id. at 550 N.2 (White, J., Concurring);
109. Id. at 567 (Fortas, J., Dissenting);
110. Robinson, 370 U.S. At 667
111. Jones, 444 F.3d At 1133.
112. Id. at 1139 (Rymer, J., Dissenting).
113. See Robert H.Jackson, The NüRnberg Case, At Xv (1971) ("'The Power Of The Precedent... Is The Power Of The Beaten Path.'" (Quoting Judge Cardozo)).
114. Cardozo, Supra Note 1, At 40.
115. Id.
116. Id.; See Also CiüZens United V. F.E.C., 130 S. Ct. 876, 903 (2010) ("The Court Is Thus Confronted With Conflicting Lines Of Precedent....").
117. See Siegel, Supra Note 6, At 702 ("The Umpire Analogy Would Have Judges 'Just' Dec Ide Constitutional Cases According To 'The Rules.' Judges, However, Cannot 'Just' Dec Ide Constitutional Cases According To 'The Rules' Because They Cannot Agree On What The Rules Are In The Vast Majority Of The Most Important Cases.").
118. 498 F.3d 1001 (9th Cir. 2007) (En Banc)
119. Rev'D, 129 S. Ct. 1962 (2009).
120. See Id. at 1002-05. A Pregnant Woman Could Take Personal Leave, But The Allowance For Such Was Thirty Days, Whereas Temporary Disability Leave Was Unlimited.
121. Id. at 1003.
122. Pub. L. No. 95-555, 92 Stat. 2076 (1978) (Codified At 42 U.S.C. § 2000e(K) (2006)).
123. 42 U.S.C. § 2000e(K).
124. Hulteen, 498 F.3d At 1004.
125. Id.
126. Id.
127. Id. at 1004-05.
128. Id. at 1005.
129. 478 U.S. 385 (1986).
130. Pallas V. Bell, 940 F.2d 1324 (9th Cir. 1991)
131. Abrogated By At&T Φ. V. Hulteen, 129 S. Ct. 1962 (2009).
132. Id. at 1327.
133. 511 U.S. 244 (1994).
134. Id. at 265-74.
135. Cardozo, Supra Note 1, At 168-69; See Also Reinhardt, Supra Note 35, At 19 ("The Model Judge Is Increasingly Thought To Be A Technocradc Proceduralist ....").
136. Cardozo, Supra Note 1, At 168-69;
137. See Also Dav Id R. Stras & Ryan W. Scott, Navigating The New Politics Of Judicial Appointments, 102 Nw. U. L. Rev. 1869, 1879 (2008) (Boolc Review) ("Just As A Good Manager Must Understand The Job Descripdon Before Hiring An Employee, Americans 'Must Have A Clear Understanding Of What Supreme Court Jusdces Do'-Specifically, How They Dec Ide Pol Idcally Controversial Cases-To Know What Kind Of Indiv Iduals Should Be Nominated And Confirmed." (Quoting Christopher L. Eisgruber, The Next Justice 6 (2007))).
138. Cardozo, Supra Note 1, At 21.
139. Id. at 140.
140. Confirmation Hearing On The Nomination Of Samuel A. Alito, Jr. To Be An Associate Justice Of The Supreme Court Of The United States Before The S. Comm. On The Judiciary, 109th Cong. 475 (2006) [Hereinafter Alito Confirmation Hearing] ("When I Have Cases Involving Children, I Can'T Help But Think Of My Own Children And Think About My Children Being Treated In The Way The Children May Be Treated In The Case That'S Before Me. And That Goes Down The Line." (Statement Of Judge Samuel A. Alito, Jr.)).
141. Cardozo, Supra Note 1, At 12.
142. Sotomayor Transcript, Supra Note 8 ("Sen. Jeff Sessions: ... (Y|Ou Have Ev Idenced, I Think It'S Quite Clear, A Philosophy Of The Law That Suggests That A Judge'S Background And Experiences Can And Should-Even Should, And Naturally Will- Impact Their Decision, Which I Think Goes Against The American Ideal And Oath That A Judge Takes To Be Fair To Every Party, And Every Day When They Put On That Robe, That Is A Symbol That They'Re To Put As Ide Their Personal Biases And Prejudices.");
143. Id. ("Sen. Sessions: ... I Believe Every Judge Is Committed-Must Be-To Put As Ide Their Personal Experiences And Biases And Make Sure That That Person Before Them Gets A Fair Day In Court.");
144. Id. ("Sen. Kyl:... And It Strikes Me That You Could'Ve Easily Sa Id Here, Now, Of Course, Blind Lady Justice Doesn'T Permit Us To Base Decisions In Cases On Our Ethnicity Or Gender. We Should Strive Very Hard To Set Those As Ide When We Can. I Found Only One Rather Oblique Reference In Your Speech That Could Be Read To Say That You Warned Against That. All Of The Other Statements Seem To Embrace It Or Certainly To Recognize It And Almost Seem As If You'Re Powerless To Do Anything About It. I Accept That This Will Happen, You Sa Id.");
145. See Also Thomas Confirmation Hearing, Supra Note 5, At 177 (Statement Of Judge Clarence Thomas) (Testifying Judges Need To "Be Stripped Down Like A Runner" And "Shed The Baggage Of Ideology").
146. Martha Minow Apdy Explained That "[T]He Confusion Is Particularly Pronounced Because The Ultimate Goal Of Fairness In Our Society Includes Notions Of Representation As Well As Ideas Of Neutrality." Martha Minow, Stripped Down Like A Runner Or Enriched By Experience: Bias And Impartiality Of Judges And Jurors, 33 Wm. & Mary L. Rev. 1201, 1202 (1992).
147. Cardozo, Supra Note 1, At 13;
148. See Also Davis, Supra Note 4, At 18 ("That We All Perceive Through The Prism Of Our Own Experiences Is Beyond Cavil.").
149. Cardozo, Supra Note 1, At 12 (Footnote Omitted).
150. Id. at 174-75; See Also Id. at 12 ("All Their Lives, Forces Which They Do Not Recognize And Cannot Name, Have Been Tugging At Them-Inherited Insdncts, Trad Idonal Beliefs, Acquired Convicdons; And The Resultant Is An Oudook On Life . . . .").
151. Id. at 43.
152. Id. 113.
153. Oliver Wendell Holmes, The Common Law 1 (Am. Bar Ass'N 2009) (1881).
154. Remembering Justice Thurgood Marshall- Thoughts From His Clerks, 1 Geo. J. On Fighting Povertvs, 11 (1993) (Remarks Of Vicki C.Jackson);
155. Reinhardt, Supra Note 35, At 28-29 ('Every Day, We Must Struggle To Apply Our Concepts Of Jusuce In Cases Ranging From The Most Mundane Indiv Idual Disputes To Great Social And Pol Idcjd Controversies. This Is The Part Of The Job That We Should Embrace And Take The Greatest Pleasure In Performing. Above All, It Makes Being A Judge A Worthwhile And Noble Endeavor.").
156. See, E.G., Alito Confirmation Hearing, Supra Note 88, At 475 (Statement Of Judge Samuel Alito) ("[I]N My Opening Statement, I Tried To Prov Ide A Litde Picture Of Who I Am As A Human Being And How My Background And My Experiences Have Shaped Me And Brought Me To This Point....[W]Hen A Case Comes Before Me Involving, Let'S Say, Someone Who Is An Immigrant, And We Get An Awful Lot Of Immigradon Cases And Naturalizadon Cases, I Can'T Help But Think Of My Own Ancestors Because It Wasn'T That Long Ago When They Were In That Position. And So It'S My Job To Apply The Law. It'S Not My Job To Change The Law Or To Bend The Law To Achieve Any Results, But I Have To, When I Look At Those Cases, I Have To Say To Myself, And 1 Do Say To Myself, This Could Be Your Grandfather.").
157. 155 Cong. Reg. S8823 (Daily Ed. Aug. 5, 2009) (Statement Of Sen. Cobum) ("The Pres Ident'S 'Empathy' Standard Is Antithetical To The Proper Role Of A Judge. The American People Expect A Judge To Be A Neutral Arbiter Who Treats All Litigants Equally.").
158. 155 Cong. Reg. S8780 (Daily Ed. Aug. 4, 2009) (Statement Of Sen. Grassley) ("A Mandate Of Judicial Empathy Turns That Traditional Legal Concept On Its Head In Favor Of A Lawless Standard.").
159. 155 Cong. Reg. S7602 (Daily Ed. July 16, 2009) (Statement Of Sen. Bunning) ("Empathy In And Of Itself Is Not A Bad Thing. However, In This Context It Means That The Law Would Lose Out To A Justice Who Feels An Emotional Pull To Rule One Way Or The Other.").
160. Sessions Says He'S Looking For Judicial Restraint, Nat'L J. Online, May 7, 2009, http://www.nationaljoumal.com/njonline/no-20090507-5499.php (Quoting Sen. Jeff Sessions).
161. Oxford Engush Dictionary (2d Ed. 1989).
162. Webster'S Third New International Dictionary (1981).
163. Barack Obama, The Audacnv Of Hope 68 (2006); See Also Press Release, Supra Note 7. ("I Will Seek Somebody With A Sharp And Independent Mind And A Record Of Excellence And Integrity. I Will Seek Someone Who Understands That Justice Isn'T About Some Abstract Legal Theory Or Footnote In A Case Book. It Is Also About How Our Laws Affect The Daily Realities Of People'S Lives-Whether They Can Make A Living And Care For Their Families; Whether They Feel Safe In Their Homes And Welcome In Their Own Nadon. I View That Quality Of Empathy, Of Understanding And Identifying With People'S Hopes And Struggles As An Essendal Ingredient For Arriving As [Sic] Just Decisions And Outcomes. I Will Seek Somebody Who Is Dedicated To The Rule Of Law, Who Honors Our Constitutional Trad Idons, Who Respects The Integrity Of The Judicial Process And The Appropriate Limits Of The Judicial Role.").
164. Cardozo, Supra Note 1, At 176.
165. See Minow, Supra Note 90, At 1203 ("We Also Want Ljudges] To Have The Ability To Empathize With Others, To Evaluate Credibility, To Know What Is Fair In This World, Not In A Laboratory. And We Want Jurors And Judges To Have, And To Remember, Experiences That Enable Their Empathy And Evaluative Judgments." (Emphasis Omitted)).
166. Davis, Supra Note 4, At 18 ("[T]He Inability Of Judges To Empathize With Indiv Iduals Subject To Their Judgment, May, In Some Instances, Result In Decisions That Reflect Only The Cloistered Perspective Of A Jurist, Disconnected From The Everyday Experiences Of The Less Fortunate.").
167. Leading Cases, Supra Note 55, At 172.
168. Redding V. Safford Unified Sch. Dist. No. 1, 531 F.3d 1071 (9th Cir. 2008)
169. En Banc, Ajfd In Part, Rev'D In Part, 128 S. Ct. 2633 (2009)
170. Quodng New Jersey V. T.L.O., 469 U.S. 325, 342 (1985)).
171. Redding, 531 F.3d At 1087 (Quoting T.L.O., 469 U.S. At 343).
172. M At 1086.
173. Id. at 1085 (Footnote Omitted).
174. Transcript Of Oral Argument At 58, Redding, 129 S. Ct. 2633, available at http://www.supremecourtus.gov/oral-arguments/argument-transcripts/08-479.pdf.
175. Id.
176. See Marsha S. Berzon, Memorial Dedication To Justice William J. Brennan, Jr., 31 Loy. L.A. L. Rev. 739, 741 (1998) (Recognizing That Female Advocates "Help[Ed] The Jusdces Hearing The Case See Beyond The Assumpdons Of The World In Which They Had Grown Up To The Actual Financial And Childcare Arrangements Of Many Families In Recent Years").
177. Joan Biskupic, Ginsburg: Court Needs Another Woman, Usa Today, May 6, 2009, available at Http://Www.Usatoday.Com/News/Washington/Judicial/2009-05-05- RuthGinsburg-N.Htm (Quoting Justice RüTher Bader Ginsburg).
178. Emily Bazelon, The Place Of Women On The Court, N.Y. Times, July 7, 2009, At Mm22 (Quoting Justice Ginsburg).
179. Safford Unified Sch. Dist. No. 1 V. Redding, 129 S. Ct. 2633, 2642-43 (2009).
180. Id. at 2643.
181. Id. at 2641.
182. Id. at 2642.
183. See Leading Cases, Supra Note 55, At 163 ("Conflicting Empathetic Impulses May Have Played A Significant Role In The Court'S Deliberations [In Redding] And, Because The Fourth Amendment'S Reasonableness Standard Demands Reference To External Factors, This Kind Of Debate Is Jurisprudentially Sound.");
184. See Also Berzon, Supra Note 116, At 741 ("[U]Nderstanding And Applying Established Legal Principles Often Requires A Conscious Attempt At Understanding The Points Of View Of Indiv Iduals In Different Situations.");
185. Davis, Supra Note 4, At 18 ("The Proper Exercise Of Empathy ... In No Sense Diminishes [Judges'] Ability To Make Prov Ident, Even Harsh, Decisions. On The Other Hand, The Inability Of Judges To Empathize With Indiv Iduals Subject To Their Judgment, May, In Some Instances, Result In Decisions That Reflect Only The Cloistered Perspective Of A Jurist, Disconnected From The Everyday Experiences Of The Less Fortunate.").
186. Jones V. City Of L.A., 444 F.3d 1118, 1122 (9th Cir. 2006).
187. Id. at 1120.
188. Id. At 1121 (Citing Cara Mia Dimassa & Richard Win Ton. Dumping Of Homeless Suspected Downtown, L.A. Times, Sept. 23, 2005, At Al).
189. Jones, 444 F.3d At 1126 N.3 (Citing Nat'L Coal, For The Homeless & Nat'L Law Ctr. On Homelessness & Poverty, A Dream Denied: The Criminauzation Of Home- Lessness In U.S. Cmes 10, 40-41 (2006)).
190. Id. At 1122. In Los Angeles County As A Whole, The Dififerential Between Homeless Indiv Iduals And Beds Was About 50,000. Id.
191. Id. at 1123.
192. Id.
193. Id. at 1124 (Quoting Purrie).
194. Id.
195. Id. at 1125.
196. Id. at 1122.
197. Id. at 1123.
198. Id. at 1125.
199. Id. at 1132.
200. Dean Erwin Chemerinsky Commented At The Time That Anatole France Famously Had Observed "The Majesdc Equality Of The Laws, Which Forb Id Rich And Poor Alike To Sleep Under The Br Idges, To Beg In The Streets, And To Steal Their Bread." Anatole France, The Red Lily 95 (Winifred Stephens Trans.
201. John Lane Co., 1910) (1894); See Also Henry Weinstein & Cara Mia Dimassa, Justices Hand L.A.'S Homeless A Victory, La. Times, April 15, 2006, At Al (" 'In Our Society, You Can'T Make It A Crime To Be Poor And Homeless.'" (Quoting Dean Chemerinsky)).
202. Id. At 1131. Reasonable Jurists Could, And D Id, Disagree. The Dissenting Opinion Relied On The Same Legal Authority And Facts As The Majority But Concluded That The Ordinance Constitutionally Prohibited Conduct.
203. See Id. At 1139-40 (Rymer, J., Dissenting).
204. Hulteen V. At&T Corp., 498 F.3d 1001, 1011 (9th Cir. 2007) (En Banc)
205. Rev'D, 129 S. Ct. 1962 (2009).
206. Id. At 1012 (Quoung Ledbetter V. Goodyear Tire & Rubber Co., 550 U.S. 618, 625-26 (2007)) (Alterations In Original).
207. Id. at 1002.
208. At&T Corp. V. Hulteen, 129 S. Ct. 1962, 1973 (2009).
209. See Jack B. Weinstein, Limits On Judges Learning Speaking And Acting-Part I- Tentative First Thoughts: How May Judges Learn?, 36 Ariz. L. Rev. 539, 541-42 (1994) ("No One Would Expect That Ruth Bader Ginsberg Would Ignore What She Has Learned About Discrimination Against Women-Both In Her Personal Experience And As An Advocate For Other Women .... [F]Or The Most Part, Our Knowledge Is Cons Idered Folded In And Subsumed In What We Bring To A Judgeship At The Time Of Appointment." (Footnotes Omitted)).
210. Hulteen, 129 S. Ct. At 1975 (Ginsburg, J., Dissenting) (Quoting 42 U.S.C. § 2000e(K) (2006)).
211. See Id. At 1978-80; See Also Cardozo, Supra Note 1, At 81 ("Courts Know Today That Statutes Are To Be Viewed, Not In Isolation Or In Vacuo, As Pronouncements Of Abstract Principles For The Gu Idance Of An Ideal Community, But In The Setting And The Framework Of Present-Day Conditions, As Revealed By The Labors Of Economists And Students Of The Social Sciences . . . .").
212. Hulteen, 129 S. Ct. At 1976 (Ginsburg, J., Dissenting).
213. See Cardozo, Supra Note 1, At 140 ("There Is A W Ide Gap Between The Use Of The Indiv Idual Sentiment Of Justice As A Substitute For Law, And Its Use As One Of The Tests And Touchstones In Construing Or Extending Law.").
214. Id.
215. See Generally Craig Green, An Intellectual History Ofjudicial Activism, 58 Emory Lj. 1195 (2009) (Discussing Die Development Of The "Judicial Acdvism" Label).
216. See, E.G., Michael W. Mcconnell, The Role Of Democratic Politics In Transforming Moral Convictions Into Lam, 98 Yale L.J. 1501, 1535 (1989) (Book Review) (Characterizing Youngstown Sheet & Tube Co. V. Sawyer, 343 U.S. 579 (1952), Broum V. Board Of Education, 347 U.S. 483 (1954), And Ins V. Chadha, 462 U.S. 919 (1983), As "Acuvist" Decisions-Though Rooted In The Constitution-"In The Sense Of Striking Down Actions Of The Political Branches").
217. See, E.G., Daniel J. Foley, Tennessee Supreme Court: A Statistical Analysis Of An Idea- Logical Shift After The 1990 Election, 64 Tenn. L. Rev. 155,156 N.8 (1996) ("As Used Here, The Term 'Activist' Describes Judges Who Are Willing To Write Court-Made Law And To Overturn Precedent.");
218. William Wayne Justice, The Two Faces Of Judicial Activism, 61 Geo. Wash. L. Rev. 1, 2 (1992) (Recognizing That The "Judicial Activist" Label Is Often Applied To "Decisions Whereby Judicial Precedents Or Statutory Schemes Are Overturned Based Upon The Constitutional Values Determined By The Judges").
219. See, E.G., Michelle R. Slack, Avo Iding Avo Idance: Why Use Of The Constitutional Avo Idance Canon Undermines Judicial Independence, 56 Case W. Res. L. Rev. 1057, 1058 (2006) ("Judicial Activism Has Largely Been Used As A Synonym Forjudges Whose Decisions Favor Liberal Views, Protect Civil Liberties, And Expand The Protections Of The Bill Of Rights." (Emphasis Omitted)).
220. Diarmu Id F. O'Scannlain, Lawmaking And Interpretation: The Role Of A Federal Judge In Our Constitutional Framework, 91 Marq. L. Rev. 895, 896-97 (2008).
221. See, E.G., 155 Cong. Reg. S8829 (Daily Ed. Aug. 5, 2009) (Statement Of Sen. Brownback) ("This Leads Me To Ask Which Sotomayor Are We Voting To Confirm-The Liberal Activist Or The Modest Judge Who Believes In Stricdy Apply The Law As Written?"); 152 Cong. Reg. S347 (Daily Ed. Jan. 31, 2006) (Statement Of Sen. Re Id) ("I Fear That All To Would Join Justices Scalia And Thomas In Their Activist Campaign To Narrow Congressional Power Under The Commerce Clause, A Movement That Threatens Important Public Health And Welfare Laws In The Name Of 'Federalism.'");
222. See Also O'Scannlain, Supra Note 154, At 896 ("All Of Us Who Have Observed The Increasingly Combative Judicial Confirmation Hearings In The U.S. Senate In Recent Years Are Quite Aware That It Has Become Popular For Americans Of All Political Persuasions To Applaud The Values Of 'Judicial Restraint' While Criticizing Soalled 'Activist Judges.'").
223. See, E.G., Fox News Sunday: Interview With Senators Arlen Specter And Lindsey Graham (Fox News Television Broadcast May 31, 2009), Transcript available at http://www.foxnews.com/story/0,2933,523697,00.html;
224. Abc This Week: Interview With Senator Orrin Hatch And Senator Patrick Leahy (Abc Television Broadcast May 3, 2009), Transcript available at http://abcnews.go.com/ThisWeek/story?Id=7491153&page=l.
225. Perhaps No Era Is More Decried For "Activist" Judging Than The Lochnererz.. See Jed Rubenfeld, The Anti-Ant Idiscrimination Agenda, 111 Yale L.J. 1141,1159 (2002) ("It Was Precisely This Superlegislative Quality Of The Lochner Regime-In Which The Court Expressly Arrogated To Itself The Power To Review Legislators'Judgment Of How Needful A Particular Law Was-To Which Most Objections To Lochner Viere Directed.");
226. James G. Wilson, The Role Of Public Opinion In Constitutional Interpretation, 1993 B.Y.U. L. Rev. 1037, 1119-20 ("In Tiie 1880s, Members Of The Formalistic Supreme Court Isolated Themselves From Public Opinion....They Praised English Judges For Their Capacity To Transcend Their Fellow Citizens. Such Judicial Arrogance Helped Set The Stage For The Lochner Era, In Which The Court Ignored, At Great Cost To The Country, Radical Changes In The Economy, Technology, And Public Opinion." (Footnotes Omitted)).
227. Judge Cardozo Was A Member Of The Majority In W. Coast Hotel Co. V. Parrish, 300 U.S. 379, 406-12 (1937), Which Effectively Overruled Lochner. Modem Courts Have Been Criticized For "Activism" As Well.
228. See, E.G., Lori A. Ringhand, The Rehnquist Court: A 'By The Numbers" Retrospective, 9 U. Pa. J. Const. L. 1033, 1034 (2007) ("The [Rehnquist] Court Plainly Was More 'Activist' Than Iu Predecessor Courts In Its Willingness To Inval Idate Federal Statutes, And To Do So In A Surprising Range Of Issue Areas.
229. It Also, However, Inval Idated Notably Fewer State Statutes Than D Id Those Earlier Courts . . . ."); Adam Cohen, Editorial, Last Term'S Winner At The Supreme Court: Judicial Activism, N.Y. Times, July 9, 2007, At A16 ("Largely Because Of Chief Justice Roberts And Justice Alito, The Court Has Just Completed One Of Its Most Activist Terms In Years.").
230. Cardozo, Supra Note 1, At 13 ("A Richer Scholarship Than Mine Is Requisite To Do The Work Aright. But Until That Scholarship Is Found And Enlists Itself In The Task, There May Be A Passing Interest In An Attempt To Uncover The Nature Of The Process By One Who Is Himself An Active Agent, Day By Day, In Keeping The Process Alive. That Must Be My Apology For These Introspective Searchings Of The Spirit.")
231. See Chemerinsky, Supra Note 2, At 1077 ("Far From Modest, [The Judge-As- Umpire Construct Is] Tremendously Arrogant. They Speak And Write As If There Is Only A Single True Answer To Every Constitutional Question And One Simply Needs To Be Bright Enough To Discover It. They Are Not To Be Held Accountable For Their Decisions; They Are Just Following The Law. But They Know, As Does Every Law Student And The Vast Majority Of The Public, That Most Constitutional Issues Before The Supreme Court Prov Ide The Justices Great Discretion.").
232. Cardozo, Supra Note 1, At 166.
233. Id. at 129.
234. Id. at 173.
235. Id. At 66; See Also Id. At 108 (Stating That The Judge Would Err "If He Were To Impose Upon The Community As A Rule Of Life His Own Idiosyncrasies Of Conduct Or Belier).
236. See Richard A. Posner, The Federal Courts 304-34 (1996) (Expressing A Theory Of Judicial Restraint Defined As A Court Showing Greater Deference To The Democratic Institutions).
237. Cardozo, Supra Note 1, At 90; See Also Id. At 88-89 ("[Judges] Are Free In Marking The Limits Of The Indiv Idual'S Immun Ides To Shape Their Judgments In Accordance With Reason Andjustice[, But] [T]Hat Does Not Mean That In Judging The Val Idity Of Statutes They Are Free To Substitute Their Own Ideas Of Reason And Justice For Those Of The Men And Women Whom They Serve.").
238. See Osbom V. Bank Of The U.S., 22 U.S. (9 Wheat.) 738, 866 (1824) ("Judicial Power Is Never Exercised For The Purpose Of Giving Effect To The Will Of The Judge; Always For The Purpose Of Giving Effect To . . . The Will Of The Law."). Without Denying That Judges Must Exercise Discretion. Judge Cardozo Likely Would Have Rejected Justice Sotomayor'S Statement That The Courts Of Appeals Are "'Where Policy Is Made.
239. See Peter Baker & Jeff Zeleny, Start Of A Battle, N.Y. Times, May 27, 2009, At Al (Quoting Judge Sonia Sotomayor). In His View, The Courts Are Where The Legality Of Policy Is Determined, Not Where Policy Is Made In The First Instance.
240. Cardozo, Supra Note 1, At 93.
241. See, Jones V. City Of L.A., 444 F.3d 1118, 1138 (9th Cir. 2006) ("We Do Not Suggest That Los Angeles Adopt Any Particular Social Policy, Plan, Or Law To Care For The Homeless. We Do Not Desire To Encroach On The Legislative And Executive Functions
242. [T]He City Is Free To Address [The Issue] In Any Way That It Sees Fit, Consistent With The Constitutional Principles We Have Articulated." (Citations Omitted)).
243. Cardozo, Supra Note 1, At 108; See Also Reinhardt, Supra Note 35, At 22 ("The Warren-Brennan Court Understood That Our Legal System Does Not Force Judges To Wait On The S Idelines While Other Public And Private Institutions Perpetuate Injustice.").
244. See U.S. Const, Pmbl. ("We The People Of The United States, In Order To Form A More Perfect Union ... Do Ordain And Establish This Constitution Of The United States Of America."); See Also Siegel, Supra Note 6, At 712 ("[T]He Court Legitimates Itself In History In Significant Part By Functioning As An Engaged Participant In The Constitutional Culture Of The Nation, A Culture In Which Competing Visions Of Social Order Compete For Popular Allegiance.").
245. Cardozo, Supra Note 1, At 139.
246. Id. At 108-09. Com/(Arebrown V. Bd. Of Educ, 347 U.S. 483, 494 (1954)
247. Cardozo, Supra Note 1, At 94; See Abo, E.G., Miranda V. Arizona, 384 U.S. 436, 457-58 (1966) ("The Current Practice Of Incommunicado Interrogation Is At Odds With One Of Our Nation'S Most Cherished Principles-That The Indiv Idual May Not Be Compelled To Incriminate Himself. Unless Adequate Protective Devices Are Employed To Dispel The Compulsion Inherent In Custodial Surroundings, No Statement Obtained From The Defendant Can Truly Be The Product Of His Free Choice.");
248. Mapp V. Ohio, 367 U.S. 643, 654-55 (1961) ("Today We Once Again Examine Wolfs Constitutional Documentation Of The Right To Privacy Free From Unreasonable State Intrusion, And, After Its Dozen Years On Our Books, Are Led By It To Close The Only Courtroom Door Remaining Open To Ev Idence Secured By Official Lawlessness In Flagrant Abuse Of That Basic Right, Reserved To All Persons As A Specific Guarantee Against That Very Same Unlawful Conduct.");
249. Shelley V. Kraemer, 334 U.S. 1, 20 (1948) ("We Hold Tiiat In Granting Judicial Enforcement Of The Restrictive Agreements In These Cases, The States Have Denied Petitioners The Equal Protection Of The Laws And That, Therefore, The Action Of The State Courts Cannot Stand. We Have Noted That Freedom From Discrimination By The States In The Enjoyment Of Property Rights Was Among The Basic Objectives Sought To Be Effectuated By The Framers Of The Fourteenth Amendment.").
250. Berzon, Supra Note 116, At 744.
251. Cardozo, Supra Note 1, At 171 (Quoting Pres Ident Theodore Roosevelt).
252. Id. at 172.
253. Id.
254. Id. at 168.