The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Racial issues have obviously played a big role in the public debate over President Biden's nomination of Judge Ketanji Brown Jackson to the Supreme Court. That's in part because of Biden's campaign pledge to nominate a black woman, which has been attacked by Republicans, despite the fact that race and gender played important roles in previous nominations, such as Ronald Reagan's campaign promise to nominate a woman (resulting in the nomination of Sandra Day O'Connor), and Trump's promise to name a woman to replace Ruth Bader Ginsburg (leading to the nomination of Amy Coney Barrett).
Given the controversy, it's worth noting what KBJ herself had to say about the role of race in judging, during her recent confirmation hearing for the seat she currently occupies on the US Court of Appeals for the DC Circuit:
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…..
But Cornyn later said that "since our Democratic colleagues seem to be placing so much emphasis on race," he wanted to know something else. "What role does race play, Judge Jackson, in the kind of judge you have been and the kind of judge you will be?"
Without skipping a beat, Jackson said, "I don't think that race plays a role in the kind of judge that I have been and that I would be in the way you asked that question."
"I'm looking at the arguments, the facts and the law, I'm methodically and intentionally setting aside personal views, any other inappropriate considerations and I would think that race would be the kind of thing that would be inappropriate to inject in my evaluation of a case," she continued.
"I would say that my different professional background than many of the court of appeals judges, including my district court background," she said, "would bring value."
Cynics may think KBJ was just saying whatever she thought was necessary to get herself confirmed. But there are many ways she could have elided the question without endangering her confirmation chances, but also without flatly saying that consideration of race is "inappropriate." For example, she could have said that a judge's background inevitably has at least some impact on her decisions, and that is why it's important to have diversity of all kinds on the bench. Thus, I tend to believe she sincerely meant what she said.
Regardless, many may dismiss the sentiment she expressed as hopelessly naive. Few if any judges can achieve complete detachment from "inappropriate considerations," including the influence of their racial or ethnic background, which might lead them to empathize with some litigants more than others.
But even if such complete impartiality cannot be perfectly achieved, it's still an ideal to strive for. And history shows we can make greater progress than many might assume.
I explained some of the reasons why in a 2009 LA Times debate with prominent constitutional law scholar Erwin Chemerinsky, at the time of Sonia Sotomayor's nomination to the Supreme Court. While the specific comments by President Obama that occasioned our debate are now little-remembered, the broader point I made remains relevant:
President Obama says he wants judges who have the "empathy to understand what it's like to be poor, or African American, or gay, or disabled, or old." But if judges who feel empathy for these groups can legitimately base decisions on it, the same goes for the considerably larger number of jurists who most easily empathize with what it's like to be rich, or white, or straight, or able-bodied. If we weaken the norm of judicial impartiality in favor of greater emphasis on empathy, minorities and the poor are unlikely to benefit.
Some argue that judicial impartiality is a pipe dream. Indeed, empathy can never be completely eliminated as a factor in judging. But we should strive to reduce its role rather than increase it.
This not a hopelessly utopian objective. A century ago, judges and others often discriminated against Irish American and Italian American litigants. Today, such prejudice has been largely eliminated from our society and rarely affects judicial decisions. Similarly, the average white jurist today is much less likely to discriminate against African American litigants than her counterparts 40 years ago, even though racism is far from completely eliminated. Numerous judges have issued 1st Amendment rulings protecting communist, fascist and radical Islamist speech against censorship even though those judges probably have little or no empathy for advocates of these and other unpopular ideologies. That is a major improvement over the first half of the 20th century….
To say that judges shouldn't base decisions on empathy is not to say they should ignore all "real-world" implications of their decisions. Many cases require judges to make empirical judgments…. However, judges should make such determinations by systematically considering the relevant evidence, not on the basis of any empathy they might feel for the litigants.
Reliance on empathy often actually impedes accurate evaluation of the consequences of judicial decisions. Empathy usually leads us to focus on a clearly visible, sympathetic person who has suffered some sort of readily apparent harm. But it is often difficult or impossible to feel empathy for people we never see who may be victimized by the indirect or unintended consequences of a decision. To take an example from my own field of property law, judges can easily empathize with upper middle class people who use restrictive zoning rules to maintain the attractive "character" of their communities. It is much harder to see how these laws often zone out the poor 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…. Court decisions upholding the constitutionality of exclusionary zoning may have been influenced by such empathy-driven blindness, which might have led judges to ignore its broader regional implications.