Umpires, Empathy, and Activism: Lessons from Justice Cardozo

Abstract:     
This Essay is an extension of remarks made by Ninth Circuit Court of Appeals Judge Kim McLane Wardlaw at a colloquium held by the Notre Dame Law Review in March 2009 about Justice Benjamin Cardozo's The Nature of the Judicial Process. The Essay steps back from today's overly simplified political rhetoric about judicial decision-making by revisiting Justice Cardozo's influential lectures on the subject. Justice Cardozo’s lectures make clear that the judge-as-umpire analogy that has gained popularity in recent judicial confirmation hearings is counterproductive because it ignores those areas of the law in which judges are required to exercise discretion. Only after we acknowledge that the act of judging requires something more complex than just calling balls and strikes may we engage in a serious discussion about what we expect of our judges. Justice Cardozo recognized that judges' sense of justice is a product of their life experiences, famously remarking that "[w]e may try to see things as objectively as we please[, but] we can never see them with any eyes except our own." The operative question in discussions about the judicial process should not be whether a judge will or will not ignore the lessons of her life experiences when she takes the bench; it should be whether her life experiences provide her with the capacity to comprehend legal problems from the perspectives of the persons on whose behalf she administers justice.

Number of Pages in PDF File: 34

Keywords: Cardozo, judicial decision making, judicial confirmations, empathy, umpire, Ninth Circuit

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