On April 9, 2019, I received a phone call from a judge, advising me that he and his colleagues were compiling a list of names of individuals they recommend for judicial appointment to send to Governor Newsom. It would be disingenuous of me to deny that I was incredibly flattered. And, I said that I would be interested, spent a good deal of time drafting, editing and redrafting a statement of introduction and on the application form. However, going through the process, I lost interest. I became increasingly conflicted about the job duties and how they aligned with that which makes me tick and through gaining a clear understanding of what I would need to emphasize and de-emphasize in order to successfully make it through the process.
Please don’t get me wrong. I fully appreciate the importance of the judicial branch of our government, the importance of courts in resolving disputes, and the value of well-qualified judges and Justices.
While I diverted my attention away from the application process, I focused on writing an article I was asked to write on Bias in Family Law by the editor of the Journal for the American Academy of Matrimonial Lawyers. To demonstrate the level of respect and admiration I hold for Gov. Newsom and the qualities he is seeking in individuals for judicial appointment, I would like to share the following section from the current version of my article:
"If judges were made more aware of their biases, they would be able to reduce them and otherwise keep them in check. Unfortunately, the results of research on efforts to help judges to reduce or otherwise manage their biases have been rather disappointing. In fact, the research has shown that the effects of the training, if any, for most judges 'generally declined after two weeks,' as set forth by the Federal Judicial Center. To be clear, this does not mean that such efforts are entirely ineffective.
As has already been said many times throughout this article, 'admission is the first step to recovery.' Unless people are required to take courses at which they learn about specific biases, how they are formed, their impact, and what a person can do to try and reduce or otherwise manage bias, people self-select the type of information to which they will and will not even expose themselves. As such, those most in need to acquire such information are typically the least likely to receive it, particularly if they believe they are not biased and that their explicit biases exist for good reason. Therefore, the only way to even attempt to promote awareness is through such education programs and by requiring attendance - something the legislature can do.
Of course, being exposed to such information and actually allowing oneself to receive and try and understand it are two very different things. Furthermore, such exposure does not necessarily cause a person to become aware - to admit to themselves - that they have any given bias. And, even if it does help them to develop such awareness, they must be motivated 'to do more to correct for bias in their own judgments and behaviors.' Furtunately, by raising awareness, such educational programs may help to establish such motivation. After all, what is required for a person to reduce or otherwise manage any given bias they hold is similar to that which is required for a person to change habits. As set forth in Helping Courts Address Implicit Bias: Resources for Education published by the National Center for State Courts, when judges become aware o their own biases, the need to manage them, and they possess the requisite motivation to do so, they can. The motivation to be fair matters. This is where empathy comes into play. It is another aspect of emotional intelligence and is dependent upon emotional self-awareness, which is the foundation of emotional intelligence. The connection between the two is set forth very clearly by John Lee West, Roy M. Oswald, and Nadyne Guzman in Emotional Intelligence for Religious Leaders, as follows:
'The trait of Emotional Self-Awareness is foundational to the rest of EQ development. Without it, we are unable to embrace the humility needed to grow as individuals.... Moving beyond ourselves, we need to have the trait of Empathy for others to refrain from judging or condemning those we encounter.... Empathy requireds that we respect a person enough to listen and do our best to comprehend their perspective. As one pastor explained: 'I step back and try to put myself in their shoes.'... As Brene' Brown explains.... 'Empathy is incompatible with shame and judgment. Staying out of judgment requires understanding.... In order to stay out of judgment, we must pay attention to our own triggers.'
Meanwhile, in 2002, Karen M. Page published an article which demonstrated how empathy leads to fairness. Such empathy required doing as was described by the pastor in Emotional Intelligence for Religious Leaders. However, this all requires well-developed and well-balanced emotional intelligence. And, remember, the research shows that lawyers, as a group, tend to have below average emotional intelligence, which is not surprising because they tend to score poorly in emotional self-awareness, the very foundation of emotional intelligence. This is worth repeading because while emotional intelligence consists of soft skills that can be developed, judges and justices are lawyers and they typically receive no training to develop such skills. Politics aside, as President, Barack Obama repeatedly expressed his belief that a good judge needed to have developed the skill of empathy. California Governor Gavin Newsom has said the same thing in a different way, referring to 'humility' as the characteristic that 'anchors all those other qualities desired in judges.' He explains that 'humility includes the ability 'to listen' - the most important attribute to look for in applicants for judgeship.'
To make matters worse, in 2011, Sara H. Konrath, Edward H. O'Brian, and Courtney Hsing demonstrated that between 1979 and 2009, the average level of perspective-taking - the very core of empathy, had declined by thirty four percent (34%). Their findings were based upon 72 studies conducted over that thirty (30) year period. And, most of the decline had taken place since 2000, and there was no evidence to suggest that the decline was leveling off going forward.
It is far easier to just reduce or eliminate judicial discretion, even though that creates inflexible uniform standard solutions. Nevertheless, if the intention is to reduce legal injustice at the hands of judges, the answer is not to pretend that context and complexity do not exist because that forces judges to dispense legal injustice. There is absolutely no need for judges even to attempt to administer justice when their hands are tied in that regard through legislation.
In other words, the more power legislators have over the outcome, the greater the impact of their bias because it becomes more institutionalized than localized and therefore produces systemic inequities.”
As I said, the reason I have lost interest in applying for judicial appointment partially involves what I understand I need to de-emphasize about myself in order to hope to be appointed to the bench. The information, understanding and insight I’ve attained in over a decade of extensive research and writing on bias, its cause, its impact, and what can be done to reduce or otherwise keep it in check is the exact information I understand I would need to de-emphasize. Why? Because sharing such information does not demonstrate humility and would rub those involved in the selection process the wrong way. I am afraid that I just cannot de-emphasize this in order to play the political game. This is why I have never been good at politics.
The other reason I have been so torn is because it is my understanding of bias that makes me an effective mediator. Among other things, that understanding enables me to empower people to resolve their own conflicts and disputes based upon voluntary and informed consent, and not just broker deals. I am perfectly capable of making decisions that resolve disputes for those who are unwilling or unable to do so on their own. While, I respect the need for that type of dispute resolution, it is of the type that I have advocated people against using, except as a means of last resort. Before entering law school, it was my experience that the court system is misused and my almost thirty years as a licensed attorney have solidified that belief.
A main cause of the problem is “litigation bias,” something discussed extensively in my article on Bias in Family Law, which is pending publication. Government officials have the option of either enacting policies that feed into existing biases or challenging them. They can challenge such biases by changing the default process from litigation to mediation, as is increasingly being done throughout the world. As discussed in my article, New Jersey made this change over a decade ago. Because of its success, New York followed suit this year. Meanwhile, in California, we are instead increasing the number of judges.
The following is a quote from Field of Dreams: “If you build it, they will come.” While I respect the qualities Newsom is seeking in judges, rather than challenging people’s biases, he is feeding right into them.
One thing I have come to learn over time is never to say never because I often find myself later doing exactly that which I previously said I would never do. Instead, I now say “based on circumstances as they exist today, I don’t see myself doing that.” Maybe circumstances will change at some point – even just my mindset, and I will later consider becoming a judge. Only time will tell.