1 00:00:15,276 --> 00:00:21,236 Speaker 1: Pushkin. One of the cooler things that happened in the 2 00:00:21,276 --> 00:00:24,756 Speaker 1: last few decades is that scientists have decided that emotions 3 00:00:25,036 --> 00:00:30,116 Speaker 1: are worth studying, and they found new ways to study them, 4 00:00:30,156 --> 00:00:34,196 Speaker 1: not just in people, also in animals. The guy who's 5 00:00:34,196 --> 00:00:37,116 Speaker 1: taken the lead with the animals is a Dutch primatologist 6 00:00:37,716 --> 00:00:42,196 Speaker 1: named Franz Dawal. You know, emotions are sort of taboo topic. 7 00:00:42,276 --> 00:00:45,716 Speaker 1: They used to be, at least, and so most of 8 00:00:45,756 --> 00:00:49,436 Speaker 1: the time we don't explicitly discuss them. We discussed the 9 00:00:49,516 --> 00:00:53,836 Speaker 1: behavior that they produce, but not the emotions themselves. That's 10 00:00:53,916 --> 00:00:58,596 Speaker 1: Dwall himself. He's Dutch but works in Atlanta at Emory University. 11 00:00:59,236 --> 00:01:01,876 Speaker 1: When he started out, no one thought you could study 12 00:01:01,876 --> 00:01:05,196 Speaker 1: the emotions of animals. A lot of people just assumed 13 00:01:05,236 --> 00:01:08,476 Speaker 1: that animals didn't have emotions and scientists shouldn't care if 14 00:01:08,476 --> 00:01:11,356 Speaker 1: they did, but not supposed to talk about mental states 15 00:01:11,476 --> 00:01:16,236 Speaker 1: or feelings or planning or thoughts or whatever. And so 16 00:01:17,316 --> 00:01:20,036 Speaker 1: there was a taboo for one hundred years on talking 17 00:01:20,076 --> 00:01:23,956 Speaker 1: about that. And it's only in the last twenty years 18 00:01:24,036 --> 00:01:27,196 Speaker 1: or so that taboos being lifted, and that the more 19 00:01:27,196 --> 00:01:32,116 Speaker 1: and more scientists are open about internal states, meaning emotions. 20 00:01:32,636 --> 00:01:36,036 Speaker 1: They so clearly drive behavior in both animals and people, 21 00:01:36,956 --> 00:01:40,156 Speaker 1: which brings me to Professor the Wall's most famous experiment. 22 00:01:40,836 --> 00:01:43,516 Speaker 1: I worked with capuccin monkeys for a long time. We 23 00:01:43,636 --> 00:01:46,556 Speaker 1: noticed in our lap that the monkeys were always very 24 00:01:46,636 --> 00:01:50,196 Speaker 1: keenly watching what somebody else would get, not just what 25 00:01:50,316 --> 00:01:53,156 Speaker 1: they themselves get for a task, but also what somebody 26 00:01:53,156 --> 00:01:56,076 Speaker 1: else is getting. So the final experiment that I want 27 00:01:56,076 --> 00:01:59,436 Speaker 1: to mention to you is our fairness study. This is 28 00:01:59,476 --> 00:02:03,516 Speaker 1: the Wall's ted talk about that experiment. Two monkeys in 29 00:02:03,636 --> 00:02:08,796 Speaker 1: cages side by side. The cages are plexiglass, so the 30 00:02:08,836 --> 00:02:12,676 Speaker 1: monkey can see each other and the scientist. They're given 31 00:02:12,756 --> 00:02:16,716 Speaker 1: treats for performing a task. The task is to take 32 00:02:16,716 --> 00:02:19,156 Speaker 1: a rock from a researcher and hand it back to her. 33 00:02:19,876 --> 00:02:23,596 Speaker 1: It doesn't sound so hard, but then you're not a monkey. 34 00:02:23,756 --> 00:02:26,596 Speaker 1: The treat is a slice of cucumber. And if you 35 00:02:26,676 --> 00:02:29,916 Speaker 1: give both of them cucumber for the task, the two 36 00:02:29,956 --> 00:02:32,876 Speaker 1: monkeys side beside, they're perfectly willing to do this twenty 37 00:02:32,876 --> 00:02:35,356 Speaker 1: five times in a row. So cucumber, even though it's 38 00:02:35,396 --> 00:02:39,676 Speaker 1: really only water in my opinion, but cucumber is perfectly 39 00:02:39,716 --> 00:02:44,396 Speaker 1: fine for them, perfectly fine. But then a few rounds in. 40 00:02:44,916 --> 00:02:47,476 Speaker 1: One of the monkeys hands back the rock, and the 41 00:02:47,556 --> 00:02:52,476 Speaker 1: researcher gives that monkey a grape, not a cucumber. Monkeys 42 00:02:52,756 --> 00:02:56,116 Speaker 1: really like grapes, and the other one sees that The 43 00:02:56,196 --> 00:03:00,116 Speaker 1: other monkey stares. She waits her turn. She gets the 44 00:03:00,196 --> 00:03:04,396 Speaker 1: rock and hands it back, gets again cucumber. She looks 45 00:03:04,436 --> 00:03:09,196 Speaker 1: back and forth between the cucumber and the other monkey. 46 00:03:09,796 --> 00:03:13,116 Speaker 1: She just chucked the cucumber back at the researcher. Then 47 00:03:13,156 --> 00:03:19,316 Speaker 1: she goes ape shit. The researcher keeps giving grapes to 48 00:03:19,356 --> 00:03:23,716 Speaker 1: one monkey and cucumbers to the other. She tests a 49 00:03:23,836 --> 00:03:26,516 Speaker 1: rock now against the wall if she needs to give 50 00:03:26,556 --> 00:03:31,796 Speaker 1: it to us, and gets cucumber again. The monkey that 51 00:03:31,836 --> 00:03:35,876 Speaker 1: gets cucumber explodes in anger, climbing the walls of the cage, 52 00:03:36,316 --> 00:03:39,316 Speaker 1: throwing whatever she can get her paws on at the researcher. 53 00:03:39,796 --> 00:03:42,316 Speaker 1: So this is basically the Wall Street protest that you 54 00:03:42,356 --> 00:03:47,956 Speaker 1: see here. At some deep level, monkeys expect life to 55 00:03:48,036 --> 00:03:53,276 Speaker 1: be fair, and so do we. The human sense of 56 00:03:53,316 --> 00:03:56,876 Speaker 1: fairness is not just some sort of mental product some 57 00:03:56,956 --> 00:04:00,676 Speaker 1: sort of countient philosopher would say. Is that it's a 58 00:04:00,716 --> 00:04:04,956 Speaker 1: principle that we have arrived at by reasoning and logic 59 00:04:05,076 --> 00:04:07,396 Speaker 1: or something like that. No, no, there's there's a real 60 00:04:07,396 --> 00:04:11,196 Speaker 1: emotion behind it. And that's why the behind all these 61 00:04:11,236 --> 00:04:16,716 Speaker 1: moral principles that we have. This experiment isn't just about unfairness. 62 00:04:17,316 --> 00:04:20,316 Speaker 1: To have any effect at all, the unfairness has to 63 00:04:20,356 --> 00:04:24,676 Speaker 1: be out in the open. The monkey getting the cucumber 64 00:04:24,796 --> 00:04:28,316 Speaker 1: needs to see the monkey getting the grape. So it's 65 00:04:28,356 --> 00:04:35,276 Speaker 1: also about the relationship between transparency and unfairness. I sometimes 66 00:04:35,276 --> 00:04:37,596 Speaker 1: wonder what would happen if people ever got to see 67 00:04:37,716 --> 00:04:41,476 Speaker 1: all the unfairness in life, if say, some magical new 68 00:04:41,516 --> 00:04:46,316 Speaker 1: technology came along that generally increase the transparency in the world. 69 00:04:47,676 --> 00:04:54,916 Speaker 1: Oh wait, it just did. My name is Michael Lewis, 70 00:04:55,116 --> 00:04:58,516 Speaker 1: and this is against the rules. I show about the 71 00:04:58,516 --> 00:05:01,596 Speaker 1: decline of the human referee in American life and what 72 00:05:01,716 --> 00:05:15,076 Speaker 1: that's doing to our idea of fairness. I was talking 73 00:05:15,116 --> 00:05:18,356 Speaker 1: the other day with a woman named Musa sever She'd 74 00:05:18,356 --> 00:05:21,996 Speaker 1: grown up in Slovenia when it was part of Yugoslavia, 75 00:05:22,036 --> 00:05:24,876 Speaker 1: and she was there in the nineteen nineties when Yugoslavia 76 00:05:24,916 --> 00:05:30,796 Speaker 1: fell apart. Hundreds of thousands were killed, millions more persecuted. 77 00:05:31,556 --> 00:05:35,356 Speaker 1: Musa escaped, but with the new conviction that nothing was 78 00:05:35,396 --> 00:05:40,236 Speaker 1: more important than the rule of law. Justice. She wanted 79 00:05:40,316 --> 00:05:44,116 Speaker 1: everyone everywhere to have it. In two thousand and three, 80 00:05:44,356 --> 00:05:48,796 Speaker 1: she moved to Uzbekistan. Uzbekistan was not an obvious upgrade 81 00:05:48,796 --> 00:05:54,436 Speaker 1: on Slovenia, even at its most terrifying. Well, they had 82 00:05:54,476 --> 00:05:59,036 Speaker 1: a pretty nice constitution, but that was mainly on the paper. 83 00:05:59,956 --> 00:06:06,036 Speaker 1: Security services were controlling everything. A group called Freedom House 84 00:06:06,076 --> 00:06:09,036 Speaker 1: had sent Musa to document what was happening in Uzbeka 85 00:06:09,196 --> 00:06:14,596 Speaker 1: stands prisons. The prisons had become the Uzbek government's torture chambers. 86 00:06:15,476 --> 00:06:18,436 Speaker 1: They had cattle prods and rooms where they hung you 87 00:06:18,516 --> 00:06:21,516 Speaker 1: from your wrists and ankles, other rooms where they beat 88 00:06:21,556 --> 00:06:24,516 Speaker 1: you with robber hoses and smothered you with plastic bags, 89 00:06:25,356 --> 00:06:28,796 Speaker 1: all done in total secrecy, just like the trials that 90 00:06:28,836 --> 00:06:31,196 Speaker 1: had sent people to prison in the first place. And 91 00:06:31,236 --> 00:06:33,596 Speaker 1: what about the judges in the courtroom, where the judges 92 00:06:33,676 --> 00:06:38,276 Speaker 1: were kind of independence? Did they have? No? No, no no. 93 00:06:38,436 --> 00:06:45,316 Speaker 1: That was the old legacy of the Soviet system made 94 00:06:45,596 --> 00:06:51,156 Speaker 1: prosecutors totally in charge of everything. The government. Prosecutors were 95 00:06:51,156 --> 00:06:55,836 Speaker 1: in charge. The judges had zero power. They just took 96 00:06:55,916 --> 00:07:00,476 Speaker 1: orders from the prosecutors. The orders were simple. Any person 97 00:07:00,516 --> 00:07:04,796 Speaker 1: who gets arrested is guilty. As soon as you did 98 00:07:04,876 --> 00:07:10,076 Speaker 1: something that got the police to arrest, that was it. 99 00:07:10,236 --> 00:07:13,276 Speaker 1: You couldn't get out. Can you just describe like you're 100 00:07:13,276 --> 00:07:15,556 Speaker 1: describing to a child, would it felt like to live 101 00:07:15,596 --> 00:07:22,476 Speaker 1: in that system? Well, one person didn't matter. You didn't 102 00:07:22,516 --> 00:07:27,436 Speaker 1: matter at all. So the only way how people tried 103 00:07:27,476 --> 00:07:31,996 Speaker 1: to preserve their safety was they didn't stick out in 104 00:07:32,076 --> 00:07:36,916 Speaker 1: any way. People had to stay hidden. Not because the 105 00:07:37,036 --> 00:07:41,276 Speaker 1: Uzbeks didn't have any laws. They had their nice little constitution. 106 00:07:42,276 --> 00:07:45,196 Speaker 1: What they lacked was an idea at the center of 107 00:07:45,236 --> 00:07:50,556 Speaker 1: any system of justice, the independent judge, the ref in robes, 108 00:07:51,276 --> 00:07:55,676 Speaker 1: the human being charged with ensuring fairness in the court 109 00:07:55,716 --> 00:07:59,476 Speaker 1: of law. When you live in a country that doesn't 110 00:07:59,476 --> 00:08:02,276 Speaker 1: have people like that, you wake up every day to 111 00:08:02,356 --> 00:08:06,076 Speaker 1: the same emotion. Fear that there was always fearing, Yeah, 112 00:08:06,276 --> 00:08:11,156 Speaker 1: fear that if you don't do what the state wants 113 00:08:11,156 --> 00:08:14,916 Speaker 1: you to do, they could eliminate you. The Uzbeks didn't 114 00:08:14,956 --> 00:08:18,596 Speaker 1: invent the police state. They were just more enthusiastic about 115 00:08:18,636 --> 00:08:22,796 Speaker 1: it than most. But in two thousand and sixteen something changed. 116 00:08:23,516 --> 00:08:34,356 Speaker 1: Muy the president died. That was his funeral. He was 117 00:08:34,396 --> 00:08:38,196 Speaker 1: the only president that Uzbekistan had ever had, And the 118 00:08:38,276 --> 00:08:43,276 Speaker 1: new president decided amazingly and without any great revolution, to 119 00:08:43,396 --> 00:08:47,836 Speaker 1: open things up, to create basically from scratch, a legal 120 00:08:47,876 --> 00:08:54,116 Speaker 1: system that included some concept of fairness in practice that 121 00:08:54,156 --> 00:08:57,316 Speaker 1: meant handing actual power to the people who'd never had 122 00:08:57,356 --> 00:09:03,236 Speaker 1: any The judges the refs, which sounds like it should 123 00:09:03,236 --> 00:09:05,676 Speaker 1: be easy for the judges, right, You don't really think 124 00:09:05,716 --> 00:09:08,476 Speaker 1: of them having to learn how to be independent. It's 125 00:09:08,516 --> 00:09:10,676 Speaker 1: like breathing. You do it so long as you're allowed to. 126 00:09:11,356 --> 00:09:16,436 Speaker 1: It turns out that's wrong. The younger ones are those 127 00:09:16,676 --> 00:09:21,116 Speaker 1: usually to make a decision on acquittals and try to 128 00:09:21,156 --> 00:09:26,316 Speaker 1: do things right. The older ones are still they find 129 00:09:26,356 --> 00:09:28,956 Speaker 1: it hard. So if you're a defendant and you walk 130 00:09:28,996 --> 00:09:31,756 Speaker 1: into a courtroom and you see a young judge, you're 131 00:09:31,796 --> 00:09:35,356 Speaker 1: happier than if you see an old judge. Yeah, definitely, 132 00:09:35,716 --> 00:09:39,196 Speaker 1: because only the new judges will acquit you. The old 133 00:09:39,276 --> 00:09:41,836 Speaker 1: guys will still assume you're supposed to be sent directly 134 00:09:41,876 --> 00:09:45,156 Speaker 1: to jail. It's as if they don't want their independence, 135 00:09:46,516 --> 00:09:49,436 Speaker 1: or as if the Uzbek system doesn't know how to 136 00:09:49,476 --> 00:09:53,116 Speaker 1: grant it to them. The Uzbeks have done all kinds 137 00:09:53,116 --> 00:09:56,636 Speaker 1: of things to get the changes to work. They've invited 138 00:09:56,676 --> 00:10:00,636 Speaker 1: American judges to visit to teach them about judicial independence. 139 00:10:01,196 --> 00:10:04,236 Speaker 1: They've opened their courtrooms so people can watch the trials. 140 00:10:05,396 --> 00:10:08,676 Speaker 1: Musa had this idea of staging mock trials so that 141 00:10:08,756 --> 00:10:11,756 Speaker 1: the old guys could see what fairness looked like. So 142 00:10:11,996 --> 00:10:16,556 Speaker 1: we had two trials. On both trials that defense won 143 00:10:16,756 --> 00:10:22,236 Speaker 1: the case. That was such a shock the team of prosecutors, 144 00:10:22,876 --> 00:10:26,156 Speaker 1: and they sent us the best. Didn't you even want 145 00:10:26,156 --> 00:10:29,356 Speaker 1: to shake the hands with the team of defense. They 146 00:10:29,396 --> 00:10:33,076 Speaker 1: were so pieced off, and they would be asking what 147 00:10:33,196 --> 00:10:38,436 Speaker 1: happens to American prosecutor when he loses a case? Does 148 00:10:38,516 --> 00:10:41,796 Speaker 1: he lose a job? Is he punished? They were an 149 00:10:41,836 --> 00:10:45,276 Speaker 1: undefeated team up to that point. Yes, they never lost. 150 00:10:45,476 --> 00:10:48,436 Speaker 1: They never lost because they were not supposed to lose. 151 00:10:48,876 --> 00:10:52,316 Speaker 1: They're not supposed to lose, right, Changing those attitudes must 152 00:10:52,356 --> 00:10:56,916 Speaker 1: not be easy. It's not easy, and you know that's 153 00:10:56,916 --> 00:11:00,756 Speaker 1: why I'm there fifteen years. All of which is to 154 00:11:00,836 --> 00:11:03,716 Speaker 1: say that a system of justice isn't just a bunch 155 00:11:03,756 --> 00:11:07,116 Speaker 1: of laws. A system of justice lives and dies on 156 00:11:07,156 --> 00:11:11,836 Speaker 1: the emotion it evokes, especially feelings about the judges, and 157 00:11:11,916 --> 00:11:16,756 Speaker 1: the judges feelings about their role. So here's what happens. 158 00:11:17,276 --> 00:11:20,836 Speaker 1: We're in front of a very hostile judge. The judge 159 00:11:20,956 --> 00:11:28,316 Speaker 1: was appointed by Barack Obama, federal judge. These feelings can change. 160 00:11:29,276 --> 00:11:33,236 Speaker 1: They're changing right here, right now, because he's given us 161 00:11:33,396 --> 00:11:37,836 Speaker 1: ruling after ruling after ruling, negative, negative, negative. The uzbeks 162 00:11:37,836 --> 00:11:40,356 Speaker 1: have picked a funny moment to emulate the American system 163 00:11:40,436 --> 00:11:45,556 Speaker 1: of justice. They want transparency, they want the people to 164 00:11:45,596 --> 00:11:49,196 Speaker 1: see the judges at work. At the same time, Americans 165 00:11:49,196 --> 00:11:52,236 Speaker 1: are being encouraged to watch their judges more closely than ever, 166 00:11:53,836 --> 00:12:05,516 Speaker 1: and what they see is causing some problems. So I 167 00:12:05,556 --> 00:12:07,676 Speaker 1: walked in, and I mean, I think, I think I 168 00:12:07,756 --> 00:12:09,756 Speaker 1: look younger than I am anyway, and so I think, 169 00:12:09,756 --> 00:12:11,756 Speaker 1: you know, I think, you know, I thought a lot 170 00:12:11,796 --> 00:12:13,756 Speaker 1: of people just assumed guy was, you know, in my 171 00:12:13,916 --> 00:12:16,676 Speaker 1: early twenties or something. You know, this is Jeremy Fogel. 172 00:12:16,876 --> 00:12:20,196 Speaker 1: He was once a judge, but not just any judge. 173 00:12:20,756 --> 00:12:23,996 Speaker 1: A judge you had a gift for watching himself on 174 00:12:24,036 --> 00:12:26,756 Speaker 1: the job. Presiding judge gave me a file and say 175 00:12:26,796 --> 00:12:29,596 Speaker 1: here's your first case. The jury's coming in half an 176 00:12:29,636 --> 00:12:34,716 Speaker 1: hour or something like that. This podcast was bound to 177 00:12:34,796 --> 00:12:38,996 Speaker 1: lead to judges. They're too important to ignore, but they 178 00:12:39,076 --> 00:12:42,276 Speaker 1: usually don't have much to say for themselves. By law, 179 00:12:42,476 --> 00:12:46,236 Speaker 1: they're forbidden from discussing their cases. By custom, they don't 180 00:12:46,236 --> 00:12:49,036 Speaker 1: typically invite you to get to know them. That's why 181 00:12:49,036 --> 00:12:52,436 Speaker 1: I've come to Jeremy Fogel. He's decided that judges have 182 00:12:52,516 --> 00:12:55,516 Speaker 1: no choice but to break their silence because they're being 183 00:12:55,556 --> 00:12:58,596 Speaker 1: watched in new ways, and he's sort of taking the lead. 184 00:12:59,436 --> 00:13:02,076 Speaker 1: Fogel was always a little odd for a judge. He 185 00:13:02,116 --> 00:13:05,836 Speaker 1: went to college during the Vietnam War. He'd studied religion 186 00:13:05,956 --> 00:13:09,236 Speaker 1: and wanted to become a professor, but the war or 187 00:13:09,276 --> 00:13:12,236 Speaker 1: switched on something inside of him made him want to 188 00:13:12,276 --> 00:13:17,236 Speaker 1: do something practical out in the world. I just felt 189 00:13:17,236 --> 00:13:20,396 Speaker 1: like an academic life was going to be too cloistered, 190 00:13:21,116 --> 00:13:24,556 Speaker 1: so law school was kind of something I did, almost 191 00:13:25,076 --> 00:13:28,996 Speaker 1: as an afterthought. He became a public defender, taking the 192 00:13:29,036 --> 00:13:32,556 Speaker 1: cases of people who couldn't afford a lawyer. He saw 193 00:13:32,636 --> 00:13:37,396 Speaker 1: the unfairness of the system, the crazy inequality, the likelihood 194 00:13:37,396 --> 00:13:39,436 Speaker 1: that it would treat a poor person less fairly than 195 00:13:39,476 --> 00:13:43,036 Speaker 1: a rich person. Jeremy was doing what he could directify that, 196 00:13:43,556 --> 00:13:45,556 Speaker 1: but he sensed that he had this thing about him 197 00:13:45,916 --> 00:13:48,556 Speaker 1: that made him less than ideal for the job. You 198 00:13:48,636 --> 00:13:51,636 Speaker 1: can't be the one sided advocate where you you just 199 00:13:51,716 --> 00:13:53,636 Speaker 1: kind of go in and say, well, you know, my 200 00:13:54,156 --> 00:13:56,796 Speaker 1: client's entirely right and these people are entirely wrong. I 201 00:13:57,156 --> 00:14:00,596 Speaker 1: never felt comfortable doing that. He didn't like taking sides, 202 00:14:01,316 --> 00:14:03,956 Speaker 1: which is a problem if you're a lawyer. You know, 203 00:14:03,956 --> 00:14:08,436 Speaker 1: there's there's lawyers who actually believe their clients cases totally right. 204 00:14:08,476 --> 00:14:10,196 Speaker 1: Then there's people who know that it isn't but they 205 00:14:10,476 --> 00:14:14,396 Speaker 1: can play the role. And I wasn't ever really that 206 00:14:14,436 --> 00:14:17,276 Speaker 1: comfortable playing the role at the same time. I mean, 207 00:14:17,316 --> 00:14:20,676 Speaker 1: I was aware of my ethical obligations were and so 208 00:14:20,716 --> 00:14:22,236 Speaker 1: I started to think about, well if you what if 209 00:14:22,276 --> 00:14:25,636 Speaker 1: I were a neutral? A neutral we know now how 210 00:14:25,636 --> 00:14:29,196 Speaker 1: hard they are to find others who knew. Jeremy Fogel 211 00:14:29,276 --> 00:14:32,436 Speaker 1: had the same thought. In nineteen eighty six, Fogel was 212 00:14:32,476 --> 00:14:37,396 Speaker 1: appointed to be a California state judge. It nerve wracking. Well, 213 00:14:37,396 --> 00:14:39,956 Speaker 1: I was really nervous, you know, I didn't know what 214 00:14:40,036 --> 00:14:43,796 Speaker 1: to expect. And no, I don't think I don't I 215 00:14:43,836 --> 00:14:45,316 Speaker 1: know think I ever hit the gavel in my life. 216 00:14:45,356 --> 00:14:47,276 Speaker 1: But but but I just I was never in a 217 00:14:47,396 --> 00:14:49,156 Speaker 1: I was never in a mood where I felt like 218 00:14:49,196 --> 00:14:51,556 Speaker 1: I needed to do that. He wound up running a 219 00:14:51,596 --> 00:14:55,276 Speaker 1: family court without ever once using his gavel. He presided 220 00:14:55,276 --> 00:15:00,636 Speaker 1: over divorces and custody battles. It was emotional, angry, ugly. 221 00:15:01,756 --> 00:15:04,516 Speaker 1: If a judge had some perverse desire to be murdered 222 00:15:04,596 --> 00:15:07,236 Speaker 1: by the people in his courtroom, he'd ask for family 223 00:15:07,276 --> 00:15:11,516 Speaker 1: court duty. Most judges dislike family cord because it's the 224 00:15:11,556 --> 00:15:15,556 Speaker 1: hot zone. Jeremy Fogel didn't just like it. He loved it. 225 00:15:16,116 --> 00:15:18,316 Speaker 1: You know, you have people who are quote normal most 226 00:15:18,316 --> 00:15:20,956 Speaker 1: of the time, who when they're in the middle of 227 00:15:20,956 --> 00:15:24,956 Speaker 1: the divorce or not temporarily, they're temporarily insane. Right, So 228 00:15:25,036 --> 00:15:27,676 Speaker 1: the ability to kind of step in and bring a 229 00:15:27,716 --> 00:15:31,836 Speaker 1: little bit of order to the situation actually was something 230 00:15:31,876 --> 00:15:35,956 Speaker 1: I felt very positive about. And how did you do that? 231 00:15:36,556 --> 00:15:38,036 Speaker 1: I mean, I think a lot of it was just 232 00:15:38,476 --> 00:15:41,476 Speaker 1: just listening and trying to figure out what's really going on. 233 00:15:41,556 --> 00:15:43,756 Speaker 1: And you know, they're fighting about who gets the dog. 234 00:15:43,756 --> 00:15:45,676 Speaker 1: You know, they're fighting about who gets the piano or 235 00:15:46,076 --> 00:15:48,476 Speaker 1: you knows, And I just said, it's not about the piano, 236 00:15:49,116 --> 00:15:51,476 Speaker 1: you know, this is this is a power struggle, you know. 237 00:15:51,836 --> 00:15:54,036 Speaker 1: So I would say parties, I would bring them in 238 00:15:54,076 --> 00:15:56,356 Speaker 1: for mediations. They would talk to me about this, you know, 239 00:15:56,956 --> 00:15:59,556 Speaker 1: and so you know, you would kind of dig down 240 00:15:59,596 --> 00:16:02,436 Speaker 1: and you could sort of see what the underlying problem was, 241 00:16:02,476 --> 00:16:04,156 Speaker 1: and then you could say, well, how are we gonna 242 00:16:04,836 --> 00:16:06,316 Speaker 1: how are we going to move forward here? You know, 243 00:16:06,316 --> 00:16:08,756 Speaker 1: how are we going to get you folks divorce? Because 244 00:16:08,756 --> 00:16:11,516 Speaker 1: that's really what needs to happen. Right, you're getting a 245 00:16:11,556 --> 00:16:15,276 Speaker 1: feel for him. A born neutral, some people just are. 246 00:16:16,276 --> 00:16:18,636 Speaker 1: Jeremy Fogel thinks he caught the trait from growing up 247 00:16:18,676 --> 00:16:21,716 Speaker 1: with a volatile father, from wanting life at home to 248 00:16:21,756 --> 00:16:25,476 Speaker 1: just calm him down anyway. Judging suits him. In nineteen 249 00:16:25,636 --> 00:16:28,436 Speaker 1: ninety seven, Bill Clinton appoints him to the United States 250 00:16:28,476 --> 00:16:32,356 Speaker 1: Court for the District of Northern California. It's the big time. 251 00:16:33,156 --> 00:16:35,316 Speaker 1: He goes from being one of tens of thousands of 252 00:16:35,356 --> 00:16:38,716 Speaker 1: state judges to one of only two thousand federal judges. 253 00:16:39,516 --> 00:16:43,236 Speaker 1: He's got life tenure in this job that he totally loves. 254 00:16:44,556 --> 00:16:47,876 Speaker 1: But now he's noticing things and they're pulling him outside 255 00:16:47,876 --> 00:16:52,796 Speaker 1: of himself, causing him to watch himself meta judging. And 256 00:16:52,916 --> 00:16:55,916 Speaker 1: it's actually really hard to be humble when you're a 257 00:16:55,956 --> 00:17:00,996 Speaker 1: judge because the the everybody's countown to you. You're you're, 258 00:17:01,116 --> 00:17:02,556 Speaker 1: you're wearing the robe, and you're on the bench, and 259 00:17:02,596 --> 00:17:04,916 Speaker 1: everybody's you know, calling you your honor and they're you know, 260 00:17:04,996 --> 00:17:08,716 Speaker 1: there's there's a lot of false deference. I think a 261 00:17:08,836 --> 00:17:11,876 Speaker 1: judge you can make huge mistakes and still fool himself 262 00:17:11,916 --> 00:17:15,156 Speaker 1: into thinking that he was doing great. Jeremy Fogel tried 263 00:17:15,196 --> 00:17:18,436 Speaker 1: to fight this tendency by not allowing himself to forget 264 00:17:18,516 --> 00:17:21,356 Speaker 1: his most terrible mistakes. I mean, the one that always 265 00:17:21,396 --> 00:17:23,356 Speaker 1: comes to mind was when I was doing the Mantle 266 00:17:23,396 --> 00:17:27,036 Speaker 1: Health calendar and this young man was trying to get 267 00:17:27,196 --> 00:17:32,196 Speaker 1: off of conservativeship, and the doctors were saying, no, he's 268 00:17:33,036 --> 00:17:35,436 Speaker 1: managed depressive and he would be dangerous to himself, and 269 00:17:36,116 --> 00:17:39,916 Speaker 1: he persuaded me that he was okay, and he killed 270 00:17:39,956 --> 00:17:43,276 Speaker 1: himself the next day. Judging forces you to make these 271 00:17:43,316 --> 00:17:46,956 Speaker 1: horrible life and death decisions when you really don't know 272 00:17:47,036 --> 00:17:50,076 Speaker 1: the right answer. Jeremy Fogel knows that he's going to 273 00:17:50,156 --> 00:17:53,436 Speaker 1: be wrong sometimes, and so he thinks it's important for 274 00:17:53,516 --> 00:17:55,756 Speaker 1: the people on the receiving end of his judgments to 275 00:17:55,836 --> 00:17:59,996 Speaker 1: sense his humility, his humanity. He thinks judges need to 276 00:17:59,996 --> 00:18:02,716 Speaker 1: be not as book smart, but people smart, so that 277 00:18:02,756 --> 00:18:06,476 Speaker 1: people who leave their courtroom feel okay with what's just happened. 278 00:18:07,116 --> 00:18:11,516 Speaker 1: We need a curriculum. You need to be intentional about 279 00:18:11,596 --> 00:18:14,276 Speaker 1: what we're teaching judges. What kind of judges are we 280 00:18:14,276 --> 00:18:17,156 Speaker 1: trying to grow? You know, the longer Jeremy Foggle is 281 00:18:17,196 --> 00:18:21,276 Speaker 1: a judge, the more worried he becomes about the relationship 282 00:18:21,316 --> 00:18:26,116 Speaker 1: between Americans and their judges. He's right to be worried. 283 00:18:26,596 --> 00:18:31,156 Speaker 1: American judges are being threatened and challenged and exposed as 284 00:18:31,276 --> 00:18:35,756 Speaker 1: never before. You to say, Senator, I would like to 285 00:18:35,836 --> 00:18:42,556 Speaker 1: start by saying, unequivocally, uncategorically that I deny each and 286 00:18:42,836 --> 00:18:47,436 Speaker 1: every single allegation against me today that suggested in any 287 00:18:47,476 --> 00:18:52,756 Speaker 1: way that I had conversations of a sexual nature or 288 00:18:52,796 --> 00:18:59,996 Speaker 1: about pornographic material with Anita Hill. Supreme Court confirmation battles. 289 00:19:01,076 --> 00:19:04,316 Speaker 1: They're now just a ritual in American culture, but they 290 00:19:04,356 --> 00:19:08,316 Speaker 1: have echoes in the daily lives of ordinary judges. Political 291 00:19:08,356 --> 00:19:11,396 Speaker 1: attacks on jeg are on the rise, Physical attacks on 292 00:19:11,476 --> 00:19:14,196 Speaker 1: judges are on the rise, and there's this new demand 293 00:19:14,236 --> 00:19:16,916 Speaker 1: that judges reveal more and more of themselves in their 294 00:19:16,996 --> 00:19:20,516 Speaker 1: lives to us. When I was started writing the norm 295 00:19:20,636 --> 00:19:25,076 Speaker 1: was still for the justices not to grant many, if any, 296 00:19:25,156 --> 00:19:28,556 Speaker 1: on the record interviews, And in fact, the Supreme Court 297 00:19:28,556 --> 00:19:32,036 Speaker 1: at that time didn't even publish transcripts of the arguments 298 00:19:32,036 --> 00:19:33,836 Speaker 1: on the same day, and they would just refer to 299 00:19:33,916 --> 00:19:37,116 Speaker 1: the court rather than an individual justice. That's how impersonal 300 00:19:37,156 --> 00:19:39,116 Speaker 1: the whole thing was supposed to be. In the early nineties. 301 00:19:39,316 --> 00:19:43,556 Speaker 1: Jeff Rosen runs the National Constitution Center in Philadelphia, but 302 00:19:43,596 --> 00:19:46,276 Speaker 1: he used to make his living writing these wonderful profiles 303 00:19:46,276 --> 00:19:50,356 Speaker 1: of Supreme Court justices. And he's watched even Supreme Court 304 00:19:50,436 --> 00:19:53,956 Speaker 1: judges bow to the social pressure to let everyone get 305 00:19:53,956 --> 00:19:56,356 Speaker 1: to know them. Now the transcripts are published on the 306 00:19:56,396 --> 00:19:58,436 Speaker 1: same day, the justices are identified by name, and the 307 00:19:58,516 --> 00:20:02,076 Speaker 1: justices are writing best selling books, and they're appearing not 308 00:20:02,156 --> 00:20:06,956 Speaker 1: only on c spand but on the networks, and they're 309 00:20:06,956 --> 00:20:09,436 Speaker 1: opening themselves up to being just as accessible is all 310 00:20:09,436 --> 00:20:14,436 Speaker 1: the other celebrified figures in our celebrified culture. Honorable the 311 00:20:14,556 --> 00:20:17,876 Speaker 1: Chief Justice and the Associate Justices of the Supreme Court 312 00:20:17,956 --> 00:20:21,956 Speaker 1: of the United States. Something different is going on here 313 00:20:22,076 --> 00:20:24,756 Speaker 1: than what goes on in the Capitol Building or in 314 00:20:24,796 --> 00:20:27,116 Speaker 1: the White House. And you need to appreciate how important 315 00:20:27,116 --> 00:20:30,356 Speaker 1: it is to our system of government. Jeff Rosen doesn't 316 00:20:30,356 --> 00:20:34,156 Speaker 1: approve of any of this. He really doesn't approve. He 317 00:20:34,236 --> 00:20:36,596 Speaker 1: thinks that would all be better off if judges retain 318 00:20:36,676 --> 00:20:41,076 Speaker 1: their old mystique, if they weren't so human. But you 319 00:20:41,156 --> 00:20:45,756 Speaker 1: know what, it's too late, and Jeremy Fogel thinks this 320 00:20:45,836 --> 00:20:49,476 Speaker 1: might be okay. One of the things that will help 321 00:20:50,436 --> 00:20:56,236 Speaker 1: strengthen traditional independence is if the public understands more about judges. 322 00:20:57,076 --> 00:21:00,836 Speaker 1: People don't understand what we do, and what you see 323 00:21:00,916 --> 00:21:03,956 Speaker 1: is that use caricatures, and I think the more you 324 00:21:03,996 --> 00:21:05,676 Speaker 1: can kind of really paint the picture and kind of 325 00:21:05,676 --> 00:21:07,676 Speaker 1: get out there's a job. You know, it's like being 326 00:21:07,676 --> 00:21:10,116 Speaker 1: a doctor, it's like being a teacher, being a fighter pilot. 327 00:21:10,116 --> 00:21:11,796 Speaker 1: I mean, there's a skill set that goes with it, 328 00:21:11,836 --> 00:21:14,156 Speaker 1: and there's a set of values that go with it, 329 00:21:14,196 --> 00:21:18,076 Speaker 1: and that it's inappropriate for people to be like making 330 00:21:18,116 --> 00:21:20,316 Speaker 1: death threats. Yeah. So that part of the problem with 331 00:21:20,396 --> 00:21:22,836 Speaker 1: the judge in American life is that he's so different 332 00:21:22,876 --> 00:21:25,836 Speaker 1: from so much else of American life. Americans go through 333 00:21:25,916 --> 00:21:28,556 Speaker 1: life doing what they feel like doing right, and it's 334 00:21:28,596 --> 00:21:31,596 Speaker 1: hard to imagine themselves into a headspace where they're doing 335 00:21:31,636 --> 00:21:33,636 Speaker 1: things for some reason other than they want to do them. 336 00:21:33,716 --> 00:21:38,836 Speaker 1: That's right, Americans really don't understand refs. Jeremy Fogel felt 337 00:21:38,836 --> 00:21:42,876 Speaker 1: that they needed to, and so in twenty eleven, when 338 00:21:42,876 --> 00:21:45,476 Speaker 1: he was sixty one years old, he did something that 339 00:21:45,516 --> 00:21:49,156 Speaker 1: would have surprised his younger self. He left the bench 340 00:21:50,396 --> 00:21:54,356 Speaker 1: for this thing in Washington called the Federal Judicial Center, 341 00:21:54,916 --> 00:21:58,596 Speaker 1: created by Congress back in the nineteen sixties to improve 342 00:21:58,636 --> 00:22:04,196 Speaker 1: the nation's entire judiciary. Jeremy Fogel agrees to run it. 343 00:22:05,516 --> 00:22:07,836 Speaker 1: He thinks he can use the place to train judges 344 00:22:07,956 --> 00:22:12,276 Speaker 1: in better ways, so they can withstand the new transparency 345 00:22:12,636 --> 00:22:14,716 Speaker 1: and be better than the caricature as we see in 346 00:22:14,756 --> 00:22:19,756 Speaker 1: confirmation battles. Did you consume alcohol during your high school years? Yes, 347 00:22:19,836 --> 00:22:24,196 Speaker 1: we drank beer. My friends and I the boys and girls. 348 00:22:24,596 --> 00:22:29,396 Speaker 1: I liked beer. Still like beer, And I think, you know, 349 00:22:29,476 --> 00:22:32,396 Speaker 1: judges all over the country are really struggling with this. 350 00:22:32,476 --> 00:22:35,476 Speaker 1: I mean, like, how how do we explain to people 351 00:22:35,516 --> 00:22:37,596 Speaker 1: that know? I mean, that's just not who we are, 352 00:22:37,636 --> 00:22:39,516 Speaker 1: it's not what we do, and it's really important that 353 00:22:39,556 --> 00:22:42,236 Speaker 1: you know that. Where do you hear that? I hear it. 354 00:22:42,276 --> 00:22:44,636 Speaker 1: I just hear it from other judges, and I hear 355 00:22:44,636 --> 00:22:47,196 Speaker 1: it from judges as state level and the federal level, 356 00:22:47,236 --> 00:22:48,716 Speaker 1: and you're hearing this in a way you wouldn't have 357 00:22:48,796 --> 00:22:50,956 Speaker 1: heard it when you started your career. That's right. So 358 00:22:50,996 --> 00:22:53,516 Speaker 1: this is changing. It is changing. It is changing. It 359 00:22:53,636 --> 00:22:55,796 Speaker 1: is something that's in the air. Actually, it must be 360 00:22:55,836 --> 00:22:58,236 Speaker 1: more than one thing, because it's new to your nose, 361 00:22:59,436 --> 00:23:06,276 Speaker 1: an entirely new smell. Has anyone told you about the 362 00:23:06,516 --> 00:23:09,116 Speaker 1: what judges you for breakfast study? Tell me about it. 363 00:23:09,476 --> 00:23:13,596 Speaker 1: That's Emily Basilon. She's written so much interesting journalism about 364 00:23:13,596 --> 00:23:16,916 Speaker 1: the American legal system that the Yale Law School has 365 00:23:16,956 --> 00:23:21,756 Speaker 1: made her a research scholar. Okay, so this is at 366 00:23:21,756 --> 00:23:25,196 Speaker 1: this point kind of a famous study in law nerd world. 367 00:23:26,836 --> 00:23:30,276 Speaker 1: Somebody looked at the sentencing decisions that judge is made 368 00:23:30,596 --> 00:23:34,996 Speaker 1: right before lunch and right after lunch, and they found 369 00:23:35,036 --> 00:23:40,396 Speaker 1: that after lunch judges are nicer, and before lunch, when 370 00:23:40,396 --> 00:23:44,956 Speaker 1: presumably they're getting a little peckish, they're meaner. They give 371 00:23:44,956 --> 00:23:49,316 Speaker 1: out longer sentences before lunch than after lunch. That's terrifying. Yeah, 372 00:23:49,356 --> 00:23:53,436 Speaker 1: it really is, because it feels so random, not just random, disturbing. 373 00:23:54,116 --> 00:23:56,796 Speaker 1: I'm not sure anyone ever really believed that human beings 374 00:23:56,796 --> 00:23:59,636 Speaker 1: could be perfectly rational, but people who used to sort 375 00:23:59,676 --> 00:24:01,676 Speaker 1: of believe it, or at least pretend to believe it. 376 00:24:02,156 --> 00:24:04,356 Speaker 1: We created excuses for why we didn't need to pay 377 00:24:04,396 --> 00:24:06,716 Speaker 1: too much attention to what was going on inside of 378 00:24:06,796 --> 00:24:10,196 Speaker 1: judge's minds. I mean, they'd be hand picked to make 379 00:24:10,236 --> 00:24:13,396 Speaker 1: hard decisions. How could there be anything but good at it. 380 00:24:13,836 --> 00:24:17,596 Speaker 1: We had a group of judges trial court judges in Texas, 381 00:24:17,996 --> 00:24:21,236 Speaker 1: really municipal judges, the kind of folks who see traffic 382 00:24:21,236 --> 00:24:25,596 Speaker 1: tickets and fines for restaurants and the like. Jeffrey Klinsky 383 00:24:25,716 --> 00:24:29,316 Speaker 1: teaches at Cornell Law School. He's now almost famous for 384 00:24:29,396 --> 00:24:33,516 Speaker 1: these elaborate experiments involving judges, showing that when it comes 385 00:24:33,556 --> 00:24:37,436 Speaker 1: to making decisions, judges suck in exactly the same way 386 00:24:37,516 --> 00:24:40,636 Speaker 1: as other human beings. In one study, he wanted to 387 00:24:40,636 --> 00:24:42,916 Speaker 1: see if you could screw up judges minds by putting 388 00:24:42,916 --> 00:24:46,196 Speaker 1: some random number into their brains. So he gave them 389 00:24:46,196 --> 00:24:50,596 Speaker 1: a scenario involving a nightclub that violated noise ordinances. The 390 00:24:50,676 --> 00:24:53,796 Speaker 1: judges had to figure out a proper fine, and for 391 00:24:53,836 --> 00:24:56,236 Speaker 1: half of them, we called told them that the club 392 00:24:56,316 --> 00:24:59,476 Speaker 1: was named Club fifty eight, after its street address. For 393 00:24:59,556 --> 00:25:01,876 Speaker 1: the other half. We told them it was Club eleven thousand, 394 00:25:01,916 --> 00:25:04,996 Speaker 1: eight hundred and sixty six after its street address, and 395 00:25:05,076 --> 00:25:08,396 Speaker 1: the fine was three times as high for Club eleven thousand, 396 00:25:08,556 --> 00:25:11,276 Speaker 1: eight hundred sixty six. Two of the judges even in 397 00:25:11,316 --> 00:25:14,556 Speaker 1: fact find the Club eleven thousand, eight hundred and sixty 398 00:25:14,556 --> 00:25:17,236 Speaker 1: six dollars. They thought that, well, that's a clever number. 399 00:25:17,316 --> 00:25:19,476 Speaker 1: Let's put that in and find them. You heard it 400 00:25:19,516 --> 00:25:24,276 Speaker 1: here first, Never ever call your establishment club eleven eight 401 00:25:24,356 --> 00:25:27,876 Speaker 1: hundred and sixty six, or mention any other random big 402 00:25:27,956 --> 00:25:30,236 Speaker 1: number to a judge in the process of finding you, 403 00:25:31,156 --> 00:25:33,716 Speaker 1: or for that matter, think that the judge is any 404 00:25:33,756 --> 00:25:36,876 Speaker 1: more capable than other human beings at checking himself before 405 00:25:36,916 --> 00:25:40,036 Speaker 1: he screws up. Eighty six percent of automobile drivers say 406 00:25:39,956 --> 00:25:42,476 Speaker 1: they're less likely than the median driver to get into 407 00:25:42,516 --> 00:25:46,716 Speaker 1: a car accident. People always think they're above average, especially 408 00:25:46,716 --> 00:25:49,476 Speaker 1: when it comes to something they care about. But most 409 00:25:49,516 --> 00:25:53,556 Speaker 1: trial judges care about is not having their rulings overturned. 410 00:25:53,996 --> 00:25:56,476 Speaker 1: So we asked them, how likely are you, relative to 411 00:25:56,516 --> 00:25:59,796 Speaker 1: the median judge in this room to be overturned on appeal? 412 00:26:00,796 --> 00:26:03,836 Speaker 1: And indeed, eighty seven percent of them said they were 413 00:26:03,916 --> 00:26:06,916 Speaker 1: less likely than the median judge to be overturned on appeal. 414 00:26:07,636 --> 00:26:10,596 Speaker 1: Later on, we asked a group of judges, is how 415 00:26:10,636 --> 00:26:13,436 Speaker 1: effective are you at avoiding race or gender bias in 416 00:26:13,436 --> 00:26:16,716 Speaker 1: your decisions? And nine of them are better than the 417 00:26:16,756 --> 00:26:20,316 Speaker 1: median judge at that. There's a long list of stuff 418 00:26:20,356 --> 00:26:24,436 Speaker 1: like this. It's the same stupid stuff that all people do. 419 00:26:25,636 --> 00:26:28,396 Speaker 1: The evidence has been piling up that judges are no 420 00:26:28,516 --> 00:26:31,716 Speaker 1: more than human at a time when being human is 421 00:26:31,756 --> 00:26:42,236 Speaker 1: maybe less flattering than it's ever been. It's funny how 422 00:26:42,356 --> 00:26:46,076 Speaker 1: neatly you can map what's happening to sports referees onto judges. 423 00:26:46,916 --> 00:26:50,556 Speaker 1: They've always had their biases, we're just getting better at 424 00:26:50,596 --> 00:26:53,796 Speaker 1: seeing them. We now know that sports refs, who are 425 00:26:53,836 --> 00:26:57,716 Speaker 1: made aware of their biases they make better calls. Same 426 00:26:57,756 --> 00:27:00,436 Speaker 1: should be true of judges, right, I mean, once you 427 00:27:00,596 --> 00:27:03,316 Speaker 1: know that you send people to jail longer right before 428 00:27:03,436 --> 00:27:06,556 Speaker 1: lunch than you do right after lunch, you can start 429 00:27:06,596 --> 00:27:10,836 Speaker 1: to watch your blood sugar. But as with sports refs, 430 00:27:11,436 --> 00:27:14,356 Speaker 1: a lot of people clearly believe that judges are getting worse. 431 00:27:15,196 --> 00:27:17,716 Speaker 1: It's as if we've demanded to know the truth without 432 00:27:17,756 --> 00:27:22,236 Speaker 1: realizing we can't handle the truth. Wait, it's such a 433 00:27:22,276 --> 00:27:26,036 Speaker 1: paradox that if we become more honest about the ways 434 00:27:26,116 --> 00:27:30,196 Speaker 1: in which someone's values and politics inform their judicial decisions, 435 00:27:30,196 --> 00:27:33,516 Speaker 1: that were somehow doing them a disservice. I'm talking to 436 00:27:33,556 --> 00:27:36,836 Speaker 1: Emily Basilon again. You know, it's funny. It's like the 437 00:27:36,956 --> 00:27:39,636 Speaker 1: system does much better if nobody's paying too much attention 438 00:27:39,636 --> 00:27:42,476 Speaker 1: to it. I think that's absolutely true. I mean, there's 439 00:27:42,516 --> 00:27:46,076 Speaker 1: something useful about the fiction that there is a totally 440 00:27:46,156 --> 00:27:49,356 Speaker 1: separate group of people called judges. They wear black robes, 441 00:27:49,396 --> 00:27:53,556 Speaker 1: they're Olympian, they're doing their own thing, and they're handing 442 00:27:53,556 --> 00:27:57,236 Speaker 1: down decisions from un high It's not true, right, I mean, 443 00:27:57,276 --> 00:28:01,316 Speaker 1: I really think it's like a kind of an idealized 444 00:28:01,356 --> 00:28:04,716 Speaker 1: notion of the law that is essentially false, because people's 445 00:28:04,756 --> 00:28:08,156 Speaker 1: prior beliefs and their values do shape the decisions they 446 00:28:08,156 --> 00:28:10,716 Speaker 1: make when they have real choice. Right. And Yet I'm 447 00:28:10,756 --> 00:28:13,636 Speaker 1: torn because when we had the fiction that judges were 448 00:28:13,636 --> 00:28:16,396 Speaker 1: doing some totally different thing, it was easier, I think, 449 00:28:16,476 --> 00:28:21,276 Speaker 1: for them to try to measure impartiality in that way, 450 00:28:21,316 --> 00:28:24,196 Speaker 1: to try to adhere to that standard. But it's hard 451 00:28:24,236 --> 00:28:27,476 Speaker 1: to imagine how the fiction would be restored. Oh yes, 452 00:28:27,556 --> 00:28:34,236 Speaker 1: it's gone. How long have baby judges been taught about 453 00:28:34,316 --> 00:28:38,956 Speaker 1: the importance of their emotions since twenty thirteen, so this 454 00:28:39,036 --> 00:28:41,516 Speaker 1: is a new thing. It's a new thing. Yeah. Her 455 00:28:41,596 --> 00:28:46,476 Speaker 1: name is Terry Moroney. She teaches LRD Vanderbilt. Jeremy Fogo 456 00:28:46,556 --> 00:28:48,876 Speaker 1: brought her in to teach judges in the new program 457 00:28:48,916 --> 00:28:53,156 Speaker 1: he created at the Federal Judicial Center Baby Judge School, 458 00:28:53,236 --> 00:28:56,556 Speaker 1: they call it new Judges now learn all about the 459 00:28:56,556 --> 00:28:58,956 Speaker 1: sorts of things they never used to have to think about, 460 00:28:59,796 --> 00:29:02,756 Speaker 1: like the mental errors to which all human beings are prone, 461 00:29:03,396 --> 00:29:07,236 Speaker 1: and their emotions. The law has maintained this very odd 462 00:29:07,276 --> 00:29:10,116 Speaker 1: fiction that emotion is a relevant to law and that 463 00:29:10,236 --> 00:29:14,476 Speaker 1: laws all about rationality, when pretty much every other discipline 464 00:29:14,556 --> 00:29:17,876 Speaker 1: in the world understands that emotion is central to all 465 00:29:17,916 --> 00:29:21,716 Speaker 1: aspects of human life. It's funny because I think historically, 466 00:29:22,076 --> 00:29:26,836 Speaker 1: if you'd ask people, they said, an emotional judge can't 467 00:29:26,836 --> 00:29:29,396 Speaker 1: be as fair as an unemotional judge. And what you're 468 00:29:29,436 --> 00:29:33,516 Speaker 1: saying is the emotions are always there, and it's the 469 00:29:33,596 --> 00:29:36,316 Speaker 1: judge doesn't recognize them, who can't who won't be fair? 470 00:29:36,596 --> 00:29:40,796 Speaker 1: That's correct. Yeah, The emotional lives of judges have been 471 00:29:40,836 --> 00:29:44,116 Speaker 1: discovered at roughly the same time as the emotional lives 472 00:29:44,116 --> 00:29:47,076 Speaker 1: of monkeys. It turns out they have a lot in common, 473 00:29:47,516 --> 00:29:50,956 Speaker 1: which is why Jeremy Fogel put emotional training at the 474 00:29:51,036 --> 00:29:54,076 Speaker 1: center of Baby Judge School. I wonder if you've going 475 00:29:54,156 --> 00:29:56,516 Speaker 1: back in history and tried to introduce this curriculum in 476 00:29:56,556 --> 00:29:59,876 Speaker 1: an earlier point in the history of the judiciary, if 477 00:29:59,876 --> 00:30:01,836 Speaker 1: people would have responded the same way. Said a really 478 00:30:01,876 --> 00:30:06,476 Speaker 1: interesting thought experiment, because when I was a California State judge, 479 00:30:06,476 --> 00:30:09,316 Speaker 1: I was involved in working with the California version of 480 00:30:09,356 --> 00:30:14,556 Speaker 1: the FJC and actually designed a class that looked at this, 481 00:30:15,396 --> 00:30:20,036 Speaker 1: and the general responds from judges at that time was, 482 00:30:20,156 --> 00:30:22,476 Speaker 1: you know, I just want to do my job, and 483 00:30:22,596 --> 00:30:24,676 Speaker 1: you know I don't. They didn't. They didn't say anything 484 00:30:24,676 --> 00:30:26,396 Speaker 1: like I didn't I don't have any feelings, but they 485 00:30:26,436 --> 00:30:28,396 Speaker 1: just said, I mean, I don't want to I don't 486 00:30:28,396 --> 00:30:30,076 Speaker 1: really want to go there. I don't need to go there. 487 00:30:30,556 --> 00:30:33,236 Speaker 1: And if it was somehow irrelevant to the job exactly, 488 00:30:37,596 --> 00:30:40,836 Speaker 1: the fiction is collapsing or has collapsed about who what 489 00:30:40,836 --> 00:30:42,876 Speaker 1: a judge is and what's inside a judge and how 490 00:30:42,876 --> 00:30:44,876 Speaker 1: it judge functions, and it's going to have to be 491 00:30:44,916 --> 00:30:48,516 Speaker 1: replaced by something else, right, and you're trying to you're 492 00:30:48,516 --> 00:30:51,396 Speaker 1: trying to work towards what it gets replaced by exactly. 493 00:30:51,556 --> 00:30:53,236 Speaker 1: I mean, that's exactly what I'm trying to do. It. 494 00:30:53,396 --> 00:30:56,436 Speaker 1: The general idea of baby Judge School is to turn 495 00:30:56,516 --> 00:31:00,116 Speaker 1: judges into people who can judge themselves as well as others, 496 00:31:00,156 --> 00:31:03,916 Speaker 1: because the job's putting these new pressures on judges, and 497 00:31:03,996 --> 00:31:07,036 Speaker 1: if judges don't learn to cope, the pressures will crack 498 00:31:07,116 --> 00:31:10,396 Speaker 1: them and make the entire situation and even worse. And 499 00:31:10,436 --> 00:31:12,076 Speaker 1: when you start to baby like everybody else, you're gonna 500 00:31:12,076 --> 00:31:14,116 Speaker 1: get treated like that. That's exactly what the problem was. 501 00:31:14,356 --> 00:31:16,836 Speaker 1: And I think that's what really upset me and ended 502 00:31:16,916 --> 00:31:19,716 Speaker 1: upset a lot of judges, I know, and your respective 503 00:31:19,716 --> 00:31:22,356 Speaker 1: of ideology, you know. But then so then what's the 504 00:31:22,596 --> 00:31:25,156 Speaker 1: you know, what's the remedy or is there a remedy 505 00:31:25,276 --> 00:31:28,636 Speaker 1: or you know, it's it just was we didn't nobody 506 00:31:28,676 --> 00:31:31,756 Speaker 1: likes seeing that this whole two week effort has been 507 00:31:31,796 --> 00:31:37,156 Speaker 1: a calculated and orchestrated political hit, almost by himself. Justice 508 00:31:37,236 --> 00:31:40,636 Speaker 1: Kavanaugh killed any doubts that emotions inside judges might be 509 00:31:40,636 --> 00:31:44,756 Speaker 1: a problem, fueled with apparent pent up anger about President 510 00:31:44,836 --> 00:31:48,836 Speaker 1: Trump and the twenty sixteen election fear that has been 511 00:31:48,916 --> 00:31:53,196 Speaker 1: unfairly stoked about my judicial record, revenge on behalf of 512 00:31:53,196 --> 00:31:57,116 Speaker 1: the Clintons, and millions of dollars in money from outside 513 00:31:57,236 --> 00:32:00,756 Speaker 1: left wing opposition groups. The question I guess I have 514 00:32:00,956 --> 00:32:03,516 Speaker 1: is how much can be done about it? Even with 515 00:32:03,596 --> 00:32:06,636 Speaker 1: the best coaching I come in. I'm a baby judge. 516 00:32:06,796 --> 00:32:09,396 Speaker 1: You know, I don't really care about other people's feeling. 517 00:32:09,596 --> 00:32:11,916 Speaker 1: I don't look you in the eye. But I'm very 518 00:32:11,916 --> 00:32:13,636 Speaker 1: reasonable and I got as, I got AIS and all 519 00:32:13,676 --> 00:32:15,396 Speaker 1: my classes in law school and eight under too, my 520 00:32:15,476 --> 00:32:19,396 Speaker 1: LSA t right, and I can write a really cool brief. However, 521 00:32:19,596 --> 00:32:22,436 Speaker 1: I don't feel your pain. What do you do to 522 00:32:22,516 --> 00:32:26,156 Speaker 1: school me? Well, you know there's a very long answer 523 00:32:26,196 --> 00:32:30,196 Speaker 1: to that, and that's a lifetime of work. Carry maroney again, 524 00:32:30,676 --> 00:32:33,676 Speaker 1: give me, give me an example, just one example of 525 00:32:33,756 --> 00:32:37,236 Speaker 1: a of a tool. I want a tool. Yes, So 526 00:32:37,676 --> 00:32:42,076 Speaker 1: one tool is situation modification. You can modify some aspects 527 00:32:42,116 --> 00:32:45,316 Speaker 1: of this situation to enable you to be in greater 528 00:32:45,516 --> 00:32:48,956 Speaker 1: control and give you time and space to self reflect 529 00:32:48,996 --> 00:32:51,796 Speaker 1: into act. So sometimes it's as simple as taking a break. 530 00:32:52,476 --> 00:32:55,236 Speaker 1: Let me stop here. Like all of these feelings and 531 00:32:55,316 --> 00:32:57,156 Speaker 1: the tools that you might give them to deal with 532 00:32:57,196 --> 00:32:59,756 Speaker 1: these feelings. This will make I can see why this 533 00:32:59,756 --> 00:33:03,116 Speaker 1: would help make the judge feel better about about himself 534 00:33:03,116 --> 00:33:06,036 Speaker 1: and about his job and able to sleep at night. Yeah, which, 535 00:33:06,396 --> 00:33:09,516 Speaker 1: actually it's not going to actually affect the sentencing, is it. Well, 536 00:33:09,556 --> 00:33:13,436 Speaker 1: it could actually because again, think about a judge who says, 537 00:33:13,476 --> 00:33:16,436 Speaker 1: I realized that I didn't want to send it in anger. 538 00:33:17,716 --> 00:33:21,196 Speaker 1: Anger makes you very punitive. That's part of what it's for. 539 00:33:21,636 --> 00:33:24,436 Speaker 1: That's the tendency that it evokes in humans as to 540 00:33:24,476 --> 00:33:34,276 Speaker 1: attach responsibility and to take punitive action in response to it. 541 00:33:34,316 --> 00:33:36,836 Speaker 1: In a funny way, American judges are in the same 542 00:33:36,876 --> 00:33:41,716 Speaker 1: situation as the judges in Uzbekistan. They're being forced to 543 00:33:41,796 --> 00:33:45,516 Speaker 1: adapt to a new environment. Mister Trump tweeted last week 544 00:33:45,756 --> 00:33:48,836 Speaker 1: about the Seattle judge for ruling against his executive order 545 00:33:48,876 --> 00:33:52,876 Speaker 1: on immigration, only the American environment is increasingly driven by emotion, 546 00:33:53,196 --> 00:33:55,956 Speaker 1: saying so the opinion of this so called judge, which 547 00:33:56,036 --> 00:33:59,516 Speaker 1: essentially takes law enforcement away from our country, is ridiculous 548 00:33:59,516 --> 00:34:03,676 Speaker 1: and will be overturned. That judge, James Robart, immediately became 549 00:34:03,676 --> 00:34:06,596 Speaker 1: a target on social media, with one person even calling 550 00:34:06,676 --> 00:34:10,996 Speaker 1: him a dead man walking. This is Jeremy Fogel's worst nightmare. 551 00:34:11,276 --> 00:34:13,516 Speaker 1: So Judge Robart, who was the judge in Seattle who 552 00:34:13,556 --> 00:34:19,756 Speaker 1: did the travel band case, got over a million emails. 553 00:34:20,596 --> 00:34:22,756 Speaker 1: He got death threats, and the death threats the Marshal 554 00:34:22,836 --> 00:34:25,716 Speaker 1: Service determined were credible enough that they had to give 555 00:34:25,756 --> 00:34:29,396 Speaker 1: him twenty four hour protection. And what facilitated all of 556 00:34:29,436 --> 00:34:34,836 Speaker 1: that was was social media. Are there other judges like Robot? 557 00:34:34,596 --> 00:34:39,556 Speaker 1: Sure the Ninth Circuit judges who reviewed Robart's decision that 558 00:34:40,076 --> 00:34:43,796 Speaker 1: got the same as a judge Jeremy Fogel had upset 559 00:34:43,836 --> 00:34:46,516 Speaker 1: people with his rulings back in two thousand and six. 560 00:34:46,596 --> 00:34:48,956 Speaker 1: He had blocked the execution of a man who had 561 00:34:49,036 --> 00:34:52,996 Speaker 1: raped and strangled the seventeen year old girl. After Fogel's ruling, 562 00:34:53,196 --> 00:34:56,476 Speaker 1: people went crazy. But crazy in two thousand and six 563 00:34:56,716 --> 00:35:00,996 Speaker 1: is different from crazy now. The point is that everything 564 00:35:01,076 --> 00:35:05,276 Speaker 1: is amplified and sped up, and there's just no way 565 00:35:05,276 --> 00:35:08,276 Speaker 1: you can respond to that. Judges are precluded by the 566 00:35:08,676 --> 00:35:11,916 Speaker 1: Code of Conduct from commenting on pending cases. These forces 567 00:35:11,956 --> 00:35:16,636 Speaker 1: of it that are antagonistic to judicial authority. I've gained 568 00:35:16,756 --> 00:35:21,276 Speaker 1: enormous strength, and there's not a corresponding gain in in 569 00:35:21,316 --> 00:35:24,036 Speaker 1: the forces. In the strength of the forces that might 570 00:35:24,036 --> 00:35:28,516 Speaker 1: defend authority. That's right. I think there are steps along 571 00:35:28,556 --> 00:35:32,196 Speaker 1: the way, and that one of the most important qualities 572 00:35:32,476 --> 00:35:34,956 Speaker 1: judges in America have right now is that people believe 573 00:35:34,996 --> 00:35:39,036 Speaker 1: in their independence. Emily Basilon with one final thought, if 574 00:35:39,036 --> 00:35:42,036 Speaker 1: that starts to break down in a really serious way, 575 00:35:42,396 --> 00:35:48,436 Speaker 1: then even if they technically remain independent, wouldn't they start 576 00:35:48,436 --> 00:35:51,116 Speaker 1: to feel tempted more and more to do whatever is 577 00:35:51,156 --> 00:35:55,356 Speaker 1: politically expedient. But if they stop behaving in any plausible 578 00:35:55,396 --> 00:35:58,036 Speaker 1: way as if they're independent, then aren't we on our 579 00:35:58,076 --> 00:36:05,596 Speaker 1: way to Uzbekistan? America Obviously isn't Uzbekistan. The Uzbek judges 580 00:36:05,636 --> 00:36:08,596 Speaker 1: lived in a black box. The American judge lives in 581 00:36:08,636 --> 00:36:12,956 Speaker 1: a plex a glass cage. The Uzbeks had no ability 582 00:36:12,996 --> 00:36:16,116 Speaker 1: to criticize their system of justice or even to see 583 00:36:16,116 --> 00:36:19,716 Speaker 1: how it really worked. We watch our judges as they've 584 00:36:19,756 --> 00:36:23,796 Speaker 1: never been watched before. It's not that all eyes are 585 00:36:23,876 --> 00:36:27,596 Speaker 1: upon judges when they do their jobs. It's that all 586 00:36:27,636 --> 00:36:29,796 Speaker 1: eyes are upon them when they do their jobs in 587 00:36:29,876 --> 00:36:33,676 Speaker 1: unpopular ways. When some subset of the population feels that 588 00:36:33,676 --> 00:36:37,716 Speaker 1: it's being handed a cucumber when it deserves a grape. 589 00:36:38,396 --> 00:36:41,756 Speaker 1: People from the Supreme Court of Ukraine came to visit 590 00:36:42,356 --> 00:36:45,476 Speaker 1: and so in this meeting with them, and they say, well, 591 00:36:45,476 --> 00:36:47,236 Speaker 1: you know what happens when you rule against the government, 592 00:36:47,436 --> 00:36:49,956 Speaker 1: and so nothing, you know, if the government doesn't like 593 00:36:49,996 --> 00:36:52,356 Speaker 1: the ruling, they appeal, you know, but nothing happens to me, 594 00:36:52,876 --> 00:36:56,236 Speaker 1: you know. And they thought I was being disrespectful, that 595 00:36:56,276 --> 00:36:58,956 Speaker 1: I wasn't being truthful with them. He was being truthful. 596 00:36:59,716 --> 00:37:02,276 Speaker 1: But there's more than one way to attack the independence 597 00:37:02,316 --> 00:37:06,556 Speaker 1: of judges. You don't need to completely eliminate it. All 598 00:37:06,596 --> 00:37:09,396 Speaker 1: you need to do is to generate sufficient mistry trust 599 00:37:09,436 --> 00:37:12,996 Speaker 1: of their judgments, and then it isn't long before every 600 00:37:13,116 --> 00:37:16,276 Speaker 1: judge is just a little bit frightened to do her job. 601 00:37:16,956 --> 00:37:19,516 Speaker 1: The Ninth Circuit we're gonna have to look at that, 602 00:37:19,956 --> 00:37:22,636 Speaker 1: because every case, no matter where it is, they file it. 603 00:37:22,676 --> 00:37:26,716 Speaker 1: And what's called the Ninth Circuit. This was an Obama judge. 604 00:37:27,156 --> 00:37:30,876 Speaker 1: And I'll tell you what, It's not gonna happen like 605 00:37:30,996 --> 00:37:36,796 Speaker 1: this anymore. She tests her rock now against the wall. 606 00:37:36,956 --> 00:37:39,596 Speaker 1: She needs to give it to us and cumber again. 607 00:37:42,956 --> 00:37:47,316 Speaker 1: There's one big practical difference between experimental monkeys and human beings. 608 00:37:48,556 --> 00:37:51,516 Speaker 1: The monkeys at least pretend to respect their referees, the 609 00:37:51,516 --> 00:37:55,156 Speaker 1: people who work with them, and the scientists really do 610 00:37:55,236 --> 00:37:58,236 Speaker 1: want the best for the monkeys. The researchers piss them 611 00:37:58,236 --> 00:38:01,036 Speaker 1: off by giving one a cucumber and another a grape, 612 00:38:01,876 --> 00:38:04,836 Speaker 1: but they don't allow them to stay pissed off. And 613 00:38:04,956 --> 00:38:08,116 Speaker 1: how long do the feelings linger? Oh, then I don't know. 614 00:38:08,196 --> 00:38:10,996 Speaker 1: We usually by the end of the experiment, because these 615 00:38:11,036 --> 00:38:12,876 Speaker 1: monkeys live in the group, they don't live in these 616 00:38:13,356 --> 00:38:16,076 Speaker 1: test chambers. By the end of the experiment, we give 617 00:38:16,116 --> 00:38:18,876 Speaker 1: them a lot of food and all very happy, and 618 00:38:18,916 --> 00:38:21,236 Speaker 1: then they are sent back to the group. So we 619 00:38:21,316 --> 00:38:23,876 Speaker 1: never know how long how long they're mad, because we 620 00:38:24,476 --> 00:38:28,516 Speaker 1: don't want them to be frustrated by the experiment. People 621 00:38:28,516 --> 00:38:32,756 Speaker 1: aren't given that chance. Our experiment is called life, and 622 00:38:32,836 --> 00:38:36,916 Speaker 1: it's frustrating when we see unfairness. We aren't sent to 623 00:38:36,996 --> 00:38:40,436 Speaker 1: some decompression chamber to calm down before rejoining our fellow 624 00:38:40,516 --> 00:38:45,636 Speaker 1: human beings. We look around for something or someone to attack, 625 00:38:46,436 --> 00:39:05,076 Speaker 1: and at some point we see the judge. I'm Michael Lewis, 626 00:39:05,476 --> 00:39:09,236 Speaker 1: thanks for listening to Against the Rules. Against the Rule 627 00:39:09,396 --> 00:39:14,276 Speaker 1: is brought to you by Pushkin Industries. The show is 628 00:39:14,316 --> 00:39:18,076 Speaker 1: produced by Audrey Dilling and Katherine Giredo, with research assistance 629 00:39:18,196 --> 00:39:22,356 Speaker 1: from Zoe, Oliver Gray and Beth Johnson. Our editor is 630 00:39:22,436 --> 00:39:28,156 Speaker 1: Julia Barton. Mia Lobell is our executive producer. Our theme 631 00:39:28,276 --> 00:39:31,876 Speaker 1: was composed by Nick Brittel, with additional scoring by Seth Samuel, 632 00:39:32,556 --> 00:39:36,756 Speaker 1: mastering by Jason Gambrel. Our show was recorded by Tofa 633 00:39:36,836 --> 00:39:42,116 Speaker 1: Ruth at Northgate Studios in Berkeley. Special thanks to our founders, 634 00:39:42,596 --> 00:39:45,076 Speaker 1: Jacob Weisberg and Malcolm Gladwell.