Baby Judge School

May 7, 2019

Judges now want us to know they’re human. But maybe we’d be better off if we didn’t know. Learn more about your ad choices. Visit megaphone.fm/adchoices

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one of the cooler things that's happened in the last few decades is that scientists have decided that emotions are worth studying and they found new ways to study them not just in people also in animals

the guy who's taken the lead with the animals is a Dutch primatologist named Franz DeWall you know emotions are sort of taboo topic that used to be at least and so most of the time we don't explicitly discuss them we discuss the behavior that they produce but not the emotions themselves that's the wall himself he's Dutch but works in Atlanta at Emory University when he started out no one thought you could study the emotions of animals

a lot of people just assume that animals didn't have emotions and scientists shouldn't care if they did but not supposed to talk about mental States or feelings or planning or thoughts or whatever and so there was a taboo for a hundred years on talking about that and it's only in the last 20 years or so that that taboo is being lifted and that the more and more scientists are open about internal States

meaning emotions they so clearly Drive behavior in both animals and people which brings me to Professor to walls most famous experiment I've worked with capuchin monkeys for a long time we noticed in our lab that the monkeys were always very keenly watching what somebody else would get not just what they themselves get for a task but also what somebody else is getting so final experiment that I want to mention to you is our fairness study this is the walls TED Talk

that experiment two monkeys in cages side by side the cages are plexiglass so the monkeys can see each other and the scientist they're given treats for performing a task the task is to take a rock from a researcher and handed back to her it doesn't sound so hard but then you are not a monkey the treat is a slice of cucumber and if you give both of them cucumber for the task the to Monkey side by side

right they're perfectly willing to do this 25 times in a row so cucumber even though it's really only water in my opinion but cucumber is perfectly fine for them perfectly fine but then a few rounds in one of the monkeys hands back the Rock and the researcher gives that monkey a grape not a cucumber monkeys really like grapes and see to the other one sees that the other monkey stairs she waits her turn she gets the Rock and hands

back guess again cucumber she looks back and forth between the cucumber and the other monkey

she just Chuck the Cucumber back at the researcher then she goes apeshit if the researcher keeps giving grapes to one monkey and cucumbers to the other she tests are rock now against the wall he needs to give it to us and she gets cucumber again the monkey that gets cucumber explodes and anger climbing the walls of the cage throwing whatever she can get her paws on at the researcher

so this is basically the Wall Street protests that you see here at some deep level monkeys expect life to be fair

and so do we the human sense of fairness is not just some sort of mental product some sort of kantian philosopher would say is that it's a principle that we have had arrived at by reasoning and logic or something like that no no there's a there's a real emotion behind it and that's why the feelings are so strong behind all these moral principles that we have this experiment isn't just about unfairness to have any effect at all the unfinished

and this has to be out in the open

the monkey getting the Cucumber needs to see the monkey getting the grape

so it's also about the relationship between transparency and unfairness I sometimes wonder what would happen if people ever got to see all the unfairness in life if say some magical new technology came along the generally increase the transparency in the world oh wait it just did

my name is Michael Lewis and this is against the rules a show about the decline of the human referee in American life and what that's doing to our idea of fairness

I was talking the other day with a woman named use us ever she'd grown up in Slovenia when it was part of Yugoslavia and she was there in the 1990s when Yugoslavia fell apart hundreds of thousands were killed Millions more persecuted Meuse escaped but with the new conviction that nothing was more important than the rule of law Justice she wanted everyone everywhere to have it in 2003

she moved to Uzbekistan whose Becca Stan was not an obvious upgrade on Slovenia even at its most terrifying well they had a pretty nice Constitution but that was mainly on the paper Security Services were controlling everything a group called Freedom House had sent Musa to document what was happening in Uzbekistan has prisons

the prison's had become the Uzbek government's torture chambers they had cattle prods and rooms where they hung you from your wrists and ankles other rooms were they beat you with rubber hoses and smothered you with plastic bags all done in total secrecy just like the trials that had sent people to prison in the first place what about the judges in the courtroom by the judges were kind of Independence did they have no no no no that that was

the old Legacy of the Soviet system made prosecutors totally in charge of everything the government prosecutors were in charge the judges had zero power they just took orders from the prosecutors the orders were simple any person who gets arrested is guilty yes soon as you did something that got the police to arrest you that was it you

couldn't get out can you just describe like you're describing to a child would have felt like to live in that system well one person didn't matter you didn't matter at all so the only way how people try to preserve their safety was they didn't stick out in any way people had to stay hidden

not because the Uzbek didn't have any laws they had their nice little Constitution what they lacked was an idea at the center of any system of justice the independent judge the ref in robes the human being charged with ensuring fairness in the court of law

when you live in a country that doesn't have people like that you wake up every day to the same emotion fear there was always fearing yeah fear that this if you don't do what the state wants you to do they could eliminate you do use backs didn't invent the police state they were just more enthusiastic about it than most but in 2016 something changed with me love you more than you are

the president died that was his funeral

he was the only president that Uzbekistan had ever had and the new president decided amazingly and without any great Revolution to open things up to create basically from scratch a legal system that included some concept of fairness

in practice that meant handing actual power to the people who never had any the judges the refs

which sounds like it should be easy for the judges right you don't really think of them having to learn how to be independent it's like breathing you do it so long as you're allowed to it turns out that's wrong the younger ones are those who usually the make a decision on acquittals and try to do things right the older ones are still they find it hard so if you were a defendant and you walk into a courtroom and you see a young

judge you're happier than if you see an Old Judge yeah definitely because only the new judges will acquit you the old guys will still assume you're supposed to be sent directly to jail it's as if they don't want their independence

or as if the Uzbek system doesn't know how to Grant it to them

the Uzbek have done all kinds of things to get the changes to work they've invited American judges to visit to teach them about judicial Independence they've opened their courtrooms so people can watch the trials Musa had this idea of staging mock trials so that the old guys could see what fairness look like so we had two trials on both trials that defense won the case that was such a shock that

most prosecutors and they sent us the best didn't even want to shake the hands with the team of Defense they were so pissed off and they would be asking what happens to American prosecutor when he loses a case does he lose a job his he punished they were an undefeated team up to that point yes they'd never lost they never lost because they were not supposed to lose you're not supposed to lose right change

judging those attitudes must not be easy it's not easy and you know that's why I'm there 15 years all of which is to say that a system of justice isn't just a bunch of laws a system of justice lives and dies on the emotion invokes especially feelings about the judges and the judges feelings about their role

so here's what happens we're in front of a very hostile judge the judge was appointed by Barack Obama federal judge

these feelings can change their changing right here right now because he's given us rule

Ali who's Beck's have picked a funny moment to emulate the American system of justice they want transparency they want the people to see the judges it worked at the same time Americans are being encouraged to watch their judges more closely than ever and what they see is causing some problems

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so I walked in and I mean I think I think I look younger and I am anyway and so I think you and I think a lawyer you know I thought a lot of people just assumed I was in my early 20s or something you know this is Jeremy Fogel he was once a judge but not just any judge a judge who had a gift for watching himself on the job presiding judge gave me a file is it here's your here's your first case the jury's coming in half an hour or something like that this podcast was bound to lead to

judges they're too important to ignore but they usually don't have much to say for themselves by law they're forbidden from discussing their cases by custom they don't typically invite you to get to know them that's why I've come to Jeremy Fogel he's decided that judges have no choice but to break their silence because they're being watched in new ways and he's sort of taking the lead vocal was always a little odd for a judge he went to college during the Vietnam war

he'd studied religion and wanted to become a professor but the war switched on something inside of him made him want to do something practical out in the world I just felt like an academic life was going to be to to cloistered so law school was kind of something I did almost as an afterthought he became a public defender taking the cases of people who couldn't afford a lawyer

he saw the unfairness of the system the crazy inequality the likelihood that it would treat a poor person less fairly than a rich person Jeremy was doing what he could to rectify that but he sensed that he had this thing about him that made him less than ideal for the job you can't be the one sided Advocate where you you just kind of go and say well you know my client my clients entirely right and these people are entirely wrong I never felt comfortable doing that he didn't like taking sides which is

is a problem if you're a lawyer you know there's there's lawyers who actually believes our clients case is totally right then there's people who know that it isn't but they can play the role and and I wasn't ever really that comfortable playing the role same time I mean I you know was aware of them identical obligations were and so I started to think about well gee what if I were a neutral a neutral we know now how hard they are to find

others who knew Jeremy Fogel had the same thought in 1986 Fogle was appointed to be a California state judge is nerve-racking well I was really nervous I always had you know I didn't know what to expect and no I don't think I don't think I ever hit the gavel in my life but but but I just I was never in a he was never in a mood where I felt like I needed to do that he went up running a family court without ever once using his gavel he presided over divorces and custody battles

it was emotional angry ugly if a judge had some perverse desire to be murdered by the people in his courtroom he'd ask for Family Court Duty most judges dislike family court because it's The Hot Zone Jeremy Fogel didn't just like it he loved you know you have people who are quote normal most of the time who when they're in the middle of the divorce are not the temporarily there temporarily insane right so the ability to kind of step in and

bring a little bit of order to the situation actually was something I felt very positive about and would you do that I mean I think a lot of it was just just listening and trying to figure out what's really going on and you know they're fighting about who gets the dog you know they're fighting about who gets the piano or you know as it and I just it's not about the piano you know this is this is a power struggle you know so I would say two parties I would bring them in for a mediation so talk to me about this you know and so

so you would kind of dig down and you could sort of see what the underlying problem was and then you could say well how are we going to how are we going to move forward here you know how we going to get you folks divorce because that's really what needs to happen right you're getting a feel for him a born neutral some people just are Jeremy Fogel thinks he caught the trait from growing up with a volatile father from wanting life at home to just calm down anyway judging suits him in 1997 Bill Clinton appoints

to the United States court for the District of Northern California it's the big time he goes from being one of tens of thousands of state judges to one of only two thousand federal judges he's got life tenure in this job that he totally loves

but now he's noticing things and they're pulling him outside of himself causing him to watch himself meta judging and it's actually really hard to be humble when you're a judge because the the everybody's countdown to you you're wearing the robe and you're on the bench and everybody's you know calling you your honor and there you know there there's a lot of false deference I think a judge can make huge mistakes and still fool himself into thinking that he was doing great

me Fogle tried to fight this tendency by not allowing himself to forget his most terrible mistakes I mean the one that always comes to mind was it was when I was doing the mental health calendar and this young man was trying to get off of conservatorship and the doctors were saying no he's manic depressive and he'd be dangerous to himself and and he persuaded me that he was okay

and he killed himself the next day judging forces you to make these horrible life and death decisions when you really don't know the right answer Jeremy Fogel knows that he's going to be wrong sometimes and so he thinks it's important for the people on the receiving end of his judgments to sense his humility his Humanity he thinks judges need to be not just book smart but people smart so that people who leave their courtroom feel okay with what's just happened we need a curriculum you know we

to be intentional about what we're teaching jet is what kind of judges are we trying to grow you know the longer Jeremy Fogel is a judge the more worried he becomes about the relationship between Americans and their judges he's right to be worried American judges are being threatened and challenged and exposed as never before

Tod you like to see Senator I would like to start by saying unequivocally uncatted gorik lie that I've deny each and every single allegation against me today that suggested in any way that I had conversations of a sexual nature or about pornographic material with Anita Hill

Supreme Court confirmation battles

they're now just a ritual in American culture but they have echoes in the daily lives of ordinary judges political attacks on judges are on the rise physical attacks on judges are on the rise and there's this new demand that judges reveal more and more of themselves and their lives to us when I was started writing the norm was still for the justices not to Grant many if any on the record interviews and in fact the Supreme Court at that time didn't even publish transcript

of the arguments on the same day and they would just refer to the court rather than an individual Justice that's how impersonal the whole thing was supposed to be in the early 90s Jeff rossen runs the national Constitution Center in Philadelphia but he used to make his living writing these wonderful profiles of Supreme Court Justices and he's watched even Supreme Court judges bow to the social pressure to let everyone get to know them now the transcripts are published on the same day the Justice are identified by name and the justices are writing best-selling

books and they're appearing not only on C-Span but you know on the networks and they're opening themselves up to being just as accessible as all the other celebrities I'd figures in our celebrity culture honorable the Chief Justice and the associate justices of the Supreme Court of the United States something different is going on here than what goes on in the Capitol Building or in the White House and you need to appreciate how important it is to our system of government Jeff Rosen doesn't approve of

hear this he really doesn't approve he thinks that would all be better off if judges retain their old Mystique if they weren't so human but you know what it's too late and Jeremy Fogel thinks this might be okay one of the things that will help strengthen judicial Independence is if the public understands more about Judges people don't understand what we do and you know you what you see

is that gives caricatures and I think the more you can kind of really paint the picture and kind of get out this is a job you know it's like being a doctor it's like being a teacher it's like being a fighter pilot I mean there's a skill set that goes with it and there's a set of values that go with it and and then it's inappropriate for yeah for people to be like making death threats yeah so the part of the problem with the judge in American life is that he's so different from so much else of American yeah Americans go through life doing what they feel like doing right and it's hard to imagine themselves into a headspace where

they're doing things for some reason other than they want to do them that's right Americans really don't understand refs Jeremy Fogel felt that they needed to and so in 2011 when he was 61 years old he did something that would have surprised his younger self he left the bench for this thing in Washington called the Federal Judicial center created by Congress back in the 1960s to improve the nation's entire judiciary

Jeremy Fogel agrees to run it

he thinks he can use the place to train judges in better ways so they can withstand the new transparency and be better than the caricature as we see in confirmation battles did you consume alcohol during your high school years yes we drank beer my friends and I the boys and girls I liked beer still like beer and I think you know judges all over the country are really struggling with this I mean like how how do we explain to people

bullet no I mean that's just not who we are it's not what we do and it's really important that you know that where does it where you hear I hear it I hear it from other judges and I heard from judges at the state level and the federal level and you're hearing this in a way you wouldn't have heard it when you started your career that's right so this is changing it is changing it is changing it is something that's in the air actually it must be more than one thing because it's new to your nose an entirely new smell

has anyone told you about the what judge is eat for breakfast study tell me about it that's Emily bazelon she's written so much interesting journalism about the American legal system that the Yale law school has made her a research scholar okay so this is at this point kind of a famous study and laundered World somebody looked at the sentencing decisions the judges made right before lunch and right after lunch and they

found that after lunch judges are nicer and before lunch when presumably they're getting a little peckish they're meaner they give out longer sentences before lunch then after lunch that's terrifying yeah it really is because it feels so Random not just random disturbing I'm not sure anyone ever really believed that human beings could be perfectly rational but people used to sort of believe it or at least pretend to believe it we created excuses for why we didn't need to pay to

much attention to what was going on inside of Judges Minds I mean they've been hand-picked to make hard decisions how could it be anything but good at it we had a group of Judges trial court judges in Texas really Municipal judges the kind of folks who see you know traffic tickets and fines for restaurants and the like Jeffrey ra klinsky teaches at Cornell Law School he's now almost famous for these elaborate experiments involving judges showing that when it comes to making decisions

judges suck in exactly the same way as other human beings in one study he wanted to see if you could screw up judges Minds by putting some random number into their brains so he gave them a scenario involving a nightclub that violated noise ordinances the judges had to figure out a proper fine and for half of them we called told them that the club was named Club 58 after its street address for the other half we told them it was Club 11,000 866 after its street address

and the fine was three times as high for Club eleven thousand eight hundred and sixty-six two of the judges Eve in fact find the club eleven thousand eight hundred and sixty six dollars they thought that well that's a clever number let's put that in and find them you heard it here first never ever call your establishment Club eleven thousand eight hundred and sixty-six or mention any other random big number to a judge in the process of finding you or for that matter think that the judge is any more capable than

a other human beings a checking himself before he screws up 86% of automobile drivers say they're less likely than the median driver to get into a car accident people always think they're above average especially when it comes to something they care about but most trial judges care about is not having their rulings overturned so we asked them How likely are you relative to the median judge in this room to be overturned on appeal

and indeed 87 percent of them said they were less likely than the median judge to be overturned on appeal later on we asked a group of Judges how effective are you at avoiding race or gender bias in your decisions and 99% of them are better than the median judge at that there's a long list of stuff like this it's the same stupid stuff that all people do

the evidence has been piling up the judges are no more than human at a time when being human is maybe less flattering than it's ever been

it's funny how neatly you can map what's happening to sports referees on two judges they've always had their biases we're just getting better at seeing them we now know that Sports refs who are made aware of their biases they make better calls same should be true of judges right I mean once you know that you send people to jail longer right before lunch then you do right after lunch

you can start to watch your blood sugar but as with sports refs a lot of people clearly believe that judges are getting worse it's as if we've demanded to know the truth without realizing we can't handle the truth wait it's such a paradox that if we become more honest about the ways in which someone's values and politics inform their judicial decisions that Were Somehow doing them a disservice I'm talking to Emily bazelon again

it's funny it's like the system does much better if nobody's paying too much attention to it I think that's absolutely true I mean there's something useful about the fiction that there is a totally separate group of people called judges they wear black robes their Olympian they're doing their own thing and they're handing down decisions from on high it's not true right I mean I really think it's like a kind of an idealized notion of the law that is essentially false because people's prior

beliefs and their values do shape the decisions they make when they have a real choice right and yet I'm torn because when we had the fiction that judges were doing some totally different thing it was easier I think for them to try to measure and partiality in that way to try to adhere to that standard and but it's it's hard to imagine how the fiction would be restored oh yes it's gone

how long have baby judge has been taught about the importance of their emotions since 2013 so this is a new thing it's a new thing yeah her name is Terry Maroni she teaches law at Vanderbilt Jeremy Fogel brought her in to teach judges in the new program he created at the Federal Judicial Center baby judge school they call it

new judges now learn all about the sorts of things they never used to have to think about like the mental errors to which all human beings are prone and their emotions the law has maintained this very odd fiction that emotion is irrelevant to law and that law is all about rationality when pretty much every other discipline in the world understands that emotion is Central to all aspects of human life it's funny because I think historically you if you'd asked people they were said

an emotional judge can't be as Fair as an unemotional judge and what you're saying is the emotions are always there and it's the judge doesn't recognize them who can't be won't be fair that's correct yeah the emotional lives of Judges have been discovered at roughly the same time as the emotional lives of monkeys it turns out they have a lot in common which is why Jeremy Fogel put emotional training at the center of baby judge school I wonder if you going back in history

story and try to introduce this curriculum in an earlier point in history of the Judiciary of people would respond to the same way so two really interesting thought experiment because when I was California Stage I was involved in working with the California version of the fjc and actually designed a class that looked at this and the general response that from judges at that time was you know I just want to do my job and you know I don't they didn't they didn't say too

like I didn't I don't have any feelings but they just said I'm a I don't want to I don't really want to go there I don't need to go there and if it was somehow irrelevant yeah job exactly the fiction is collapsing or has collapsed about who what a judge is and what's inside of judging how a judge functions and it's going to have to be replaced by something else right and you're trying to you're trying to work towards what it gets replaced by exactly I mean that's exactly what I'm trying to do the general idea

of baby judge school is to turn judges into people who can judge themselves as well as others because the jobs putting these new pressures on judges and if judges don't learn to cope with the pressures will crack them and make the entire situation even worse and when you start to behave like everybody else you're gonna get treated like that's exactly what the problem was and and I think that's what really upset me and upset a lot of Judges I know and and irrespective of idealogy you know but then so then what's the what's the remedy

their remedy or you know this it's it just was we didn't nobody likes seeing that this whole two-week effort has been a calculated and orchestrated political hit almost by himself just as Cavanaugh killed any doubts that emotions inside judges might be a problem fueled with a parent pent-up anger about President Trump and the 2016 election fear that has been unfairly stoked about my judicial record revenge on behalf of the clintons and me

millions of dollars in money from outside left-wing opposition groups the question I guess I have is how much can be done about it even with the best coaching I come in I'm a baby judge you know I don't really care about other people's feelings I mean I don't look you in the eye and but I'm very reasonable and I got A's and I got a zit on my classes in law school and 800 on my L sat right and I can write a really cool brief however I don't feel your pain what do you do to school me

well you know there's a very long answer to that and that's a lifetime of work Terry Maroney again give me give me give me an example just one example of a to of a tool I wanted tool yes so one tool is situation modification you can modify some aspects of the situation to enable you to be in Greater control and give you time and space to self-reflect and to act so sometimes it's as simple as taking a break let me stop for a sec

all of these feelings and the tools that you might give them to deal with these feelings this will make I can see why this would help make the judge feel better about about himself and about his job and able to sleep at night yeah with no actually it's not going to actually affect the sentencing is it well it could actually because again think about a judge who says I realized that I didn't want to send it in Anger anger makes you very punitive that's part of what it's for that's the tendency that it evokes

in humans is to attach responsibility and to take punitive action in response to it

in a funny way American judges are in the same situation as the judges in Uzbekistan

they're being forced to adapt to a new environment mr. Trump tweeted last week about the Seattle judge for ruling against his executive order on immigration only the American environment is increasingly driven by emotion saying this so the opinion of this so-called judge which essentially takes law enforcement away from our country is ridiculous and will be overturned that Judge James robart immediately became a Target on social media with one person even calling him a dead man walking this is Jeremy Fogel

worst nightmare so judge robot who is the judge in Seattle who did the travel Ban case got over a million emails he got death threats and death threats the Marshal Service determined were credible enough that they had to give him 24-hour protection and what facilitated all of that was was social media are there other judges like robot Shores kind of exposure the the ninth circuit judges who reviewed robarts decision that then they

not the same as a judge Jeremy Fogel had upset people with his rulings back in 2006 he had blocked the execution of a man who had raped and strangled the 17 year old girl after fogle's ruling people went crazy but crazy and 2006 is different from crazy now the the the point is that everything is Amplified and sped up and there's just no way you can respond to that judges are precluded by the code of conduct from commenting on

in cases these forces of it that are antagonistic to judicial Authority I've gained enormous strength and there's not a corresponding gain in the in the forces in the strength of the forces that might defend that's right that's right I think there are steps along the way and that one of the most important qualities judges in America have right now is that people believe in their independence Emily bazelon with one final thought if that starts to break down

down in a really serious way then even if they technically remain independent wouldn't they start to feel tempted more and more to do whatever is politically expedient but if they stop behaving in any plausible way as if they're independent then aren't we on our way to it was Becca Stan America obviously isn't Uzbekistan

the Uzbek judges lived in a black box the American judge lives in a plexiglass cage

the Uzbek had no ability to criticize their system of justice or even to see how it really worked we watch our judges as they've never been watched before

it's not that all eyes are upon judges when they do their jobs

it's that all eyes are upon them when they do their jobs in unpopular ways when some subset of the population feels that it's being handed a cucumber when it deserves a grape people from the Supreme Court of Ukraine can came to visit and and so in this meeting with them and they said well you know what happens when you rule against the government and it's nothing you know the government doesn't like the ruling they appeal you know but nothing happens to me you know and they thought I was being disrespectful that I wasn't being

truthful with them he was being truthful but there's more than one way to attack the independence of Judges you don't need to completely eliminate it all you need to do is to generate sufficient mistrust of their judgments and then it isn't long before every judge is just a little bit frightened to do her job the ninth circuit we're going to have to look at that because every case no matter where it is they file it and what's called the ninth circuit this was an Obama judge

judge and I'll tell you what it's not going to happen like this anymore

she tests The Rock now against the wall if you need to give it to us and she gets cucumber again this one big practical difference between experimental monkeys and human beings

the monkeys at least pretend to respect their referees the people who work with them

and the scientists really do want the best for the monkeys the researchers pissed them off by giving one a cucumber and another grape but they don't allow them to stay pissed off and how long do the feelings linger oh did I don't know we we usually by the end of the experiment because these monkeys live in a group they don't live in these test Chambers by the end of the experiment we give them a lot of food and all very happy and then they are sent back to the group so we never know how long how long though mad

us to be we don't want them to be frustrated by the experiment people aren't given that chance our experiment is called life and it's frustrating when we see unfairness we aren't sent to some decompression chamber to calm down before rejoining our fellow human beings we look around for something or someone to attack and at some point we see the judge

I'm Michael Lewis thanks for listening to against the rules against the rules is brought to you by Pushkin Industries the show is produced by Audrey dilling and Catherine Jared oh with research assistance from Zoe Oliver gray and Beth Johnson our editor is Julia Barton

Mila Bell is our executive producer

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