WEBVTT - Baby Judge School 0:00:15.276 --> 0:00:21.236 Pushkin. One of the cooler things that happened in the 0:00:21.276 --> 0:00:24.756 last few decades is that scientists have decided that emotions 0:00:25.036 --> 0:00:30.116 are worth studying, and they found new ways to study them, 0:00:30.156 --> 0:00:34.196 not just in people, also in animals. The guy who's 0:00:34.196 --> 0:00:37.116 taken the lead with the animals is a Dutch primatologist 0:00:37.716 --> 0:00:42.196 named Franz Dawal. You know, emotions are sort of taboo topic. 0:00:42.276 --> 0:00:45.716 They used to be, at least, and so most of 0:00:45.756 --> 0:00:49.436 the time we don't explicitly discuss them. We discussed the 0:00:49.516 --> 0:00:53.836 behavior that they produce, but not the emotions themselves. That's 0:00:53.916 --> 0:00:58.596 Dwall himself. He's Dutch but works in Atlanta at Emory University. 0:00:59.236 --> 0:01:01.876 When he started out, no one thought you could study 0:01:01.876 --> 0:01:05.196 the emotions of animals. A lot of people just assumed 0:01:05.236 --> 0:01:08.476 that animals didn't have emotions and scientists shouldn't care if 0:01:08.476 --> 0:01:11.356 they did, but not supposed to talk about mental states 0:01:11.476 --> 0:01:16.236 or feelings or planning or thoughts or whatever. And so 0:01:17.316 --> 0:01:20.036 there was a taboo for one hundred years on talking 0:01:20.076 --> 0:01:23.956 about that. And it's only in the last twenty years 0:01:24.036 --> 0:01:27.196 or so that taboos being lifted, and that the more 0:01:27.196 --> 0:01:32.116 and more scientists are open about internal states, meaning emotions. 0:01:32.636 --> 0:01:36.036 They so clearly drive behavior in both animals and people, 0:01:36.956 --> 0:01:40.156 which brings me to Professor the Wall's most famous experiment. 0:01:40.836 --> 0:01:43.516 I worked with capuccin monkeys for a long time. We 0:01:43.636 --> 0:01:46.556 noticed in our lap that the monkeys were always very 0:01:46.636 --> 0:01:50.196 keenly watching what somebody else would get, not just what 0:01:50.316 --> 0:01:53.156 they themselves get for a task, but also what somebody 0:01:53.156 --> 0:01:56.076 else is getting. So the final experiment that I want 0:01:56.076 --> 0:01:59.436 to mention to you is our fairness study. This is 0:01:59.476 --> 0:02:03.516 the Wall's ted talk about that experiment. Two monkeys in 0:02:03.636 --> 0:02:08.796 cages side by side. The cages are plexiglass, so the 0:02:08.836 --> 0:02:12.676 monkey can see each other and the scientist. They're given 0:02:12.756 --> 0:02:16.716 treats for performing a task. The task is to take 0:02:16.716 --> 0:02:19.156 a rock from a researcher and hand it back to her. 0:02:19.876 --> 0:02:23.596 It doesn't sound so hard, but then you're not a monkey. 0:02:23.756 --> 0:02:26.596 The treat is a slice of cucumber. And if you 0:02:26.676 --> 0:02:29.916 give both of them cucumber for the task, the two 0:02:29.956 --> 0:02:32.876 monkeys side beside, they're perfectly willing to do this twenty 0:02:32.876 --> 0:02:35.356 five times in a row. So cucumber, even though it's 0:02:35.396 --> 0:02:39.676 really only water in my opinion, but cucumber is perfectly 0:02:39.716 --> 0:02:44.396 fine for them, perfectly fine. But then a few rounds in. 0:02:44.916 --> 0:02:47.476 One of the monkeys hands back the rock, and the 0:02:47.556 --> 0:02:52.476 researcher gives that monkey a grape, not a cucumber. Monkeys 0:02:52.756 --> 0:02:56.116 really like grapes, and the other one sees that The 0:02:56.196 --> 0:03:00.116 other monkey stares. She waits her turn. She gets the 0:03:00.196 --> 0:03:04.396 rock and hands it back, gets again cucumber. She looks 0:03:04.436 --> 0:03:09.196 back and forth between the cucumber and the other monkey. 0:03:09.796 --> 0:03:13.116 She just chucked the cucumber back at the researcher. Then 0:03:13.156 --> 0:03:19.316 she goes ape shit. The researcher keeps giving grapes to 0:03:19.356 --> 0:03:23.716 one monkey and cucumbers to the other. She tests a 0:03:23.836 --> 0:03:26.516 rock now against the wall if she needs to give 0:03:26.556 --> 0:03:31.796 it to us, and gets cucumber again. The monkey that 0:03:31.836 --> 0:03:35.876 gets cucumber explodes in anger, climbing the walls of the cage, 0:03:36.316 --> 0:03:39.316 throwing whatever she can get her paws on at the researcher. 0:03:39.796 --> 0:03:42.316 So this is basically the Wall Street protest that you 0:03:42.356 --> 0:03:47.956 see here. At some deep level, monkeys expect life to 0:03:48.036 --> 0:03:53.276 be fair, and so do we. The human sense of 0:03:53.316 --> 0:03:56.876 fairness is not just some sort of mental product some 0:03:56.956 --> 0:04:00.676 sort of countient philosopher would say. Is that it's a 0:04:00.716 --> 0:04:04.956 principle that we have arrived at by reasoning and logic 0:04:05.076 --> 0:04:07.396 or something like that. No, no, there's there's a real 0:04:07.396 --> 0:04:11.196 emotion behind it. And that's why the behind all these 0:04:11.236 --> 0:04:16.716 moral principles that we have. This experiment isn't just about unfairness. 0:04:17.316 --> 0:04:20.316 To have any effect at all, the unfairness has to 0:04:20.356 --> 0:04:24.676 be out in the open. The monkey getting the cucumber 0:04:24.796 --> 0:04:28.316 needs to see the monkey getting the grape. So it's 0:04:28.356 --> 0:04:35.276 also about the relationship between transparency and unfairness. I sometimes 0:04:35.276 --> 0:04:37.596 wonder what would happen if people ever got to see 0:04:37.716 --> 0:04:41.476 all the unfairness in life, if say, some magical new 0:04:41.516 --> 0:04:46.316 technology came along that generally increase the transparency in the world. 0:04:47.676 --> 0:04:54.916 Oh wait, it just did. My name is Michael Lewis, 0:04:55.116 --> 0:04:58.516 and this is against the rules. I show about the 0:04:58.516 --> 0:05:01.596 decline of the human referee in American life and what 0:05:01.716 --> 0:05:15.076 that's doing to our idea of fairness. I was talking 0:05:15.116 --> 0:05:18.356 the other day with a woman named Musa sever She'd 0:05:18.356 --> 0:05:21.996 grown up in Slovenia when it was part of Yugoslavia, 0:05:22.036 --> 0:05:24.876 and she was there in the nineteen nineties when Yugoslavia 0:05:24.916 --> 0:05:30.796 fell apart. Hundreds of thousands were killed, millions more persecuted. 0:05:31.556 --> 0:05:35.356 Musa escaped, but with the new conviction that nothing was 0:05:35.396 --> 0:05:40.236 more important than the rule of law. Justice. She wanted 0:05:40.316 --> 0:05:44.116 everyone everywhere to have it. In two thousand and three, 0:05:44.356 --> 0:05:48.796 she moved to Uzbekistan. Uzbekistan was not an obvious upgrade 0:05:48.796 --> 0:05:54.436 on Slovenia, even at its most terrifying. Well, they had 0:05:54.476 --> 0:05:59.036 a pretty nice constitution, but that was mainly on the paper. 0:05:59.956 --> 0:06:06.036 Security services were controlling everything. A group called Freedom House 0:06:06.076 --> 0:06:09.036 had sent Musa to document what was happening in Uzbeka 0:06:09.196 --> 0:06:14.596 stands prisons. The prisons had become the Uzbek government's torture chambers. 0:06:15.476 --> 0:06:18.436 They had cattle prods and rooms where they hung you 0:06:18.516 --> 0:06:21.516 from your wrists and ankles, other rooms where they beat 0:06:21.556 --> 0:06:24.516 you with robber hoses and smothered you with plastic bags, 0:06:25.356 --> 0:06:28.796 all done in total secrecy, just like the trials that 0:06:28.836 --> 0:06:31.196 had sent people to prison in the first place. And 0:06:31.236 --> 0:06:33.596 what about the judges in the courtroom, where the judges 0:06:33.676 --> 0:06:38.276 were kind of independence? Did they have? No? No, no no. 0:06:38.436 --> 0:06:45.316 That was the old legacy of the Soviet system made 0:06:45.596 --> 0:06:51.156 prosecutors totally in charge of everything. The government. Prosecutors were 0:06:51.156 --> 0:06:55.836 in charge. The judges had zero power. They just took 0:06:55.916 --> 0:07:00.476 orders from the prosecutors. The orders were simple. Any person 0:07:00.516 --> 0:07:04.796 who gets arrested is guilty. As soon as you did 0:07:04.876 --> 0:07:10.076 something that got the police to arrest, that was it. 0:07:10.236 --> 0:07:13.276 You couldn't get out. Can you just describe like you're 0:07:13.276 --> 0:07:15.556 describing to a child, would it felt like to live 0:07:15.596 --> 0:07:22.476 in that system? Well, one person didn't matter. You didn't 0:07:22.516 --> 0:07:27.436 matter at all. So the only way how people tried 0:07:27.476 --> 0:07:31.996 to preserve their safety was they didn't stick out in 0:07:32.076 --> 0:07:36.916 any way. People had to stay hidden. Not because the 0:07:37.036 --> 0:07:41.276 Uzbeks didn't have any laws. They had their nice little constitution. 0:07:42.276 --> 0:07:45.196 What they lacked was an idea at the center of 0:07:45.236 --> 0:07:50.556 any system of justice, the independent judge, the ref in robes, 0:07:51.276 --> 0:07:55.676 the human being charged with ensuring fairness in the court 0:07:55.716 --> 0:07:59.476 of law. When you live in a country that doesn't 0:07:59.476 --> 0:08:02.276 have people like that, you wake up every day to 0:08:02.356 --> 0:08:06.076 the same emotion. Fear that there was always fearing, Yeah, 0:08:06.276 --> 0:08:11.156 fear that if you don't do what the state wants 0:08:11.156 --> 0:08:14.916 you to do, they could eliminate you. The Uzbeks didn't 0:08:14.956 --> 0:08:18.596 invent the police state. They were just more enthusiastic about 0:08:18.636 --> 0:08:22.796 it than most. But in two thousand and sixteen something changed. 0:08:23.516 --> 0:08:34.356 Muy the president died. That was his funeral. He was 0:08:34.396 --> 0:08:38.196 the only president that Uzbekistan had ever had, And the 0:08:38.276 --> 0:08:43.276 new president decided amazingly and without any great revolution, to 0:08:43.396 --> 0:08:47.836 open things up, to create basically from scratch, a legal 0:08:47.876 --> 0:08:54.116 system that included some concept of fairness in practice that 0:08:54.156 --> 0:08:57.316 meant handing actual power to the people who'd never had 0:08:57.356 --> 0:09:03.236 any The judges the refs, which sounds like it should 0:09:03.236 --> 0:09:05.676 be easy for the judges, right, You don't really think 0:09:05.716 --> 0:09:08.476 of them having to learn how to be independent. It's 0:09:08.516 --> 0:09:10.676 like breathing. You do it so long as you're allowed to. 0:09:11.356 --> 0:09:16.436 It turns out that's wrong. The younger ones are those 0:09:16.676 --> 0:09:21.116 usually to make a decision on acquittals and try to 0:09:21.156 --> 0:09:26.316 do things right. The older ones are still they find 0:09:26.356 --> 0:09:28.956 it hard. So if you're a defendant and you walk 0:09:28.996 --> 0:09:31.756 into a courtroom and you see a young judge, you're 0:09:31.796 --> 0:09:35.356 happier than if you see an old judge. Yeah, definitely, 0:09:35.716 --> 0:09:39.196 because only the new judges will acquit you. The old 0:09:39.276 --> 0:09:41.836 guys will still assume you're supposed to be sent directly 0:09:41.876 --> 0:09:45.156 to jail. It's as if they don't want their independence, 0:09:46.516 --> 0:09:49.436 or as if the Uzbek system doesn't know how to 0:09:49.476 --> 0:09:53.116 grant it to them. The Uzbeks have done all kinds 0:09:53.116 --> 0:09:56.636 of things to get the changes to work. They've invited 0:09:56.676 --> 0:10:00.636 American judges to visit to teach them about judicial independence. 0:10:01.196 --> 0:10:04.236 They've opened their courtrooms so people can watch the trials. 0:10:05.396 --> 0:10:08.676 Musa had this idea of staging mock trials so that 0:10:08.756 --> 0:10:11.756 the old guys could see what fairness looked like. So 0:10:11.996 --> 0:10:16.556 we had two trials. On both trials that defense won 0:10:16.756 --> 0:10:22.236 the case. That was such a shock the team of prosecutors, 0:10:22.876 --> 0:10:26.156 and they sent us the best. Didn't you even want 0:10:26.156 --> 0:10:29.356 to shake the hands with the team of defense. They 0:10:29.396 --> 0:10:33.076 were so pieced off, and they would be asking what 0:10:33.196 --> 0:10:38.436 happens to American prosecutor when he loses a case? Does 0:10:38.516 --> 0:10:41.796 he lose a job? Is he punished? They were an 0:10:41.836 --> 0:10:45.276 undefeated team up to that point. Yes, they never lost. 0:10:45.476 --> 0:10:48.436 They never lost because they were not supposed to lose. 0:10:48.876 --> 0:10:52.316 They're not supposed to lose, right, Changing those attitudes must 0:10:52.356 --> 0:10:56.916 not be easy. It's not easy, and you know that's 0:10:56.916 --> 0:11:00.756 why I'm there fifteen years. All of which is to 0:11:00.836 --> 0:11:03.716 say that a system of justice isn't just a bunch 0:11:03.756 --> 0:11:07.116 of laws. A system of justice lives and dies on 0:11:07.156 --> 0:11:11.836 the emotion it evokes, especially feelings about the judges, and 0:11:11.916 --> 0:11:16.756 the judges feelings about their role. So here's what happens. 0:11:17.276 --> 0:11:20.836 We're in front of a very hostile judge. The judge 0:11:20.956 --> 0:11:28.316 was appointed by Barack Obama, federal judge. These feelings can change. 0:11:29.276 --> 0:11:33.236 They're changing right here, right now, because he's given us 0:11:33.396 --> 0:11:37.836 ruling after ruling after ruling, negative, negative, negative. The uzbeks 0:11:37.836 --> 0:11:40.356 have picked a funny moment to emulate the American system 0:11:40.436 --> 0:11:45.556 of justice. They want transparency, they want the people to 0:11:45.596 --> 0:11:49.196 see the judges at work. At the same time, Americans 0:11:49.196 --> 0:11:52.236 are being encouraged to watch their judges more closely than ever, 0:11:53.836 --> 0:12:05.516 and what they see is causing some problems. So I 0:12:05.556 --> 0:12:07.676 walked in, and I mean, I think, I think I 0:12:07.756 --> 0:12:09.756 look younger than I am anyway, and so I think, 0:12:09.756 --> 0:12:11.756 you know, I think, you know, I thought a lot 0:12:11.796 --> 0:12:13.756 of people just assumed guy was, you know, in my 0:12:13.916 --> 0:12:16.676 early twenties or something. You know, this is Jeremy Fogel. 0:12:16.876 --> 0:12:20.196 He was once a judge, but not just any judge. 0:12:20.756 --> 0:12:23.996 A judge you had a gift for watching himself on 0:12:24.036 --> 0:12:26.756 the job. Presiding judge gave me a file and say 0:12:26.796 --> 0:12:29.596 here's your first case. The jury's coming in half an 0:12:29.636 --> 0:12:34.716 hour or something like that. This podcast was bound to 0:12:34.796 --> 0:12:38.996 lead to judges. They're too important to ignore, but they 0:12:39.076 --> 0:12:42.276 usually don't have much to say for themselves. By law, 0:12:42.476 --> 0:12:46.236 they're forbidden from discussing their cases. By custom, they don't 0:12:46.236 --> 0:12:49.036 typically invite you to get to know them. That's why 0:12:49.036 --> 0:12:52.436 I've come to Jeremy Fogel. He's decided that judges have 0:12:52.516 --> 0:12:55.516 no choice but to break their silence because they're being 0:12:55.556 --> 0:12:58.596 watched in new ways, and he's sort of taking the lead. 0:12:59.436 --> 0:13:02.076 Fogel was always a little odd for a judge. He 0:13:02.116 --> 0:13:05.836 went to college during the Vietnam War. He'd studied religion 0:13:05.956 --> 0:13:09.236 and wanted to become a professor, but the war or 0:13:09.276 --> 0:13:12.236 switched on something inside of him made him want to 0:13:12.276 --> 0:13:17.236 do something practical out in the world. I just felt 0:13:17.236 --> 0:13:20.396 like an academic life was going to be too cloistered, 0:13:21.116 --> 0:13:24.556 so law school was kind of something I did, almost 0:13:25.076 --> 0:13:28.996 as an afterthought. He became a public defender, taking the 0:13:29.036 --> 0:13:32.556 cases of people who couldn't afford a lawyer. He saw 0:13:32.636 --> 0:13:37.396 the unfairness of the system, the crazy inequality, the likelihood 0:13:37.396 --> 0:13:39.436 that it would treat a poor person less fairly than 0:13:39.476 --> 0:13:43.036 a rich person. Jeremy was doing what he could directify that, 0:13:43.556 --> 0:13:45.556 but he sensed that he had this thing about him 0:13:45.916 --> 0:13:48.556 that made him less than ideal for the job. You 0:13:48.636 --> 0:13:51.636 can't be the one sided advocate where you you just 0:13:51.716 --> 0:13:53.636 kind of go in and say, well, you know, my 0:13:54.156 --> 0:13:56.796 client's entirely right and these people are entirely wrong. I 0:13:57.156 --> 0:14:00.596 never felt comfortable doing that. He didn't like taking sides, 0:14:01.316 --> 0:14:03.956 which is a problem if you're a lawyer. You know, 0:14:03.956 --> 0:14:08.436 there's there's lawyers who actually believe their clients cases totally right. 0:14:08.476 --> 0:14:10.196 Then there's people who know that it isn't but they 0:14:10.476 --> 0:14:14.396 can play the role. And I wasn't ever really that 0:14:14.436 --> 0:14:17.276 comfortable playing the role at the same time. I mean, 0:14:17.316 --> 0:14:20.676 I was aware of my ethical obligations were and so 0:14:20.716 --> 0:14:22.236 I started to think about, well if you what if 0:14:22.276 --> 0:14:25.636 I were a neutral? A neutral we know now how 0:14:25.636 --> 0:14:29.196 hard they are to find others who knew. Jeremy Fogel 0:14:29.276 --> 0:14:32.436 had the same thought. In nineteen eighty six, Fogel was 0:14:32.476 --> 0:14:37.396 appointed to be a California state judge. It nerve wracking. Well, 0:14:37.396 --> 0:14:39.956 I was really nervous, you know, I didn't know what 0:14:40.036 --> 0:14:43.796 to expect. And no, I don't think I don't I 0:14:43.836 --> 0:14:45.316 know think I ever hit the gavel in my life. 0:14:45.356 --> 0:14:47.276 But but but I just I was never in a 0:14:47.396 --> 0:14:49.156 I was never in a mood where I felt like 0:14:49.196 --> 0:14:51.556 I needed to do that. He wound up running a 0:14:51.596 --> 0:14:55.276 family court without ever once using his gavel. He presided 0:14:55.276 --> 0:15:00.636 over divorces and custody battles. It was emotional, angry, ugly. 0:15:01.756 --> 0:15:04.516 If a judge had some perverse desire to be murdered 0:15:04.596 --> 0:15:07.236 by the people in his courtroom, he'd ask for family 0:15:07.276 --> 0:15:11.516 court duty. Most judges dislike family cord because it's the 0:15:11.556 --> 0:15:15.556 hot zone. Jeremy Fogel didn't just like it. He loved it. 0:15:16.116 --> 0:15:18.316 You know, you have people who are quote normal most 0:15:18.316 --> 0:15:20.956 of the time, who when they're in the middle of 0:15:20.956 --> 0:15:24.956 the divorce or not temporarily, they're temporarily insane. Right, So 0:15:25.036 --> 0:15:27.676 the ability to kind of step in and bring a 0:15:27.716 --> 0:15:31.836 little bit of order to the situation actually was something 0:15:31.876 --> 0:15:35.956 I felt very positive about. And how did you do that? 0:15:36.556 --> 0:15:38.036 I mean, I think a lot of it was just 0:15:38.476 --> 0:15:41.476 just listening and trying to figure out what's really going on. 0:15:41.556 --> 0:15:43.756 And you know, they're fighting about who gets the dog. 0:15:43.756 --> 0:15:45.676 You know, they're fighting about who gets the piano or 0:15:46.076 --> 0:15:48.476 you knows, And I just said, it's not about the piano, 0:15:49.116 --> 0:15:51.476 you know, this is this is a power struggle, you know. 0:15:51.836 --> 0:15:54.036 So I would say parties, I would bring them in 0:15:54.076 --> 0:15:56.356 for mediations. They would talk to me about this, you know, 0:15:56.956 --> 0:15:59.556 and so you know, you would kind of dig down 0:15:59.596 --> 0:16:02.436 and you could sort of see what the underlying problem was, 0:16:02.476 --> 0:16:04.156 and then you could say, well, how are we gonna 0:16:04.836 --> 0:16:06.316 how are we going to move forward here? You know, 0:16:06.316 --> 0:16:08.756 how are we going to get you folks divorce? Because 0:16:08.756 --> 0:16:11.516 that's really what needs to happen. Right, you're getting a 0:16:11.556 --> 0:16:15.276 feel for him. A born neutral, some people just are. 0:16:16.276 --> 0:16:18.636 Jeremy Fogel thinks he caught the trait from growing up 0:16:18.676 --> 0:16:21.716 with a volatile father, from wanting life at home to 0:16:21.756 --> 0:16:25.476 just calm him down anyway. Judging suits him. In nineteen 0:16:25.636 --> 0:16:28.436 ninety seven, Bill Clinton appoints him to the United States 0:16:28.476 --> 0:16:32.356 Court for the District of Northern California. It's the big time. 0:16:33.156 --> 0:16:35.316 He goes from being one of tens of thousands of 0:16:35.356 --> 0:16:38.716 state judges to one of only two thousand federal judges. 0:16:39.516 --> 0:16:43.236 He's got life tenure in this job that he totally loves. 0:16:44.556 --> 0:16:47.876 But now he's noticing things and they're pulling him outside 0:16:47.876 --> 0:16:52.796 of himself, causing him to watch himself meta judging. And 0:16:52.916 --> 0:16:55.916 it's actually really hard to be humble when you're a 0:16:55.956 --> 0:17:00.996 judge because the the everybody's countown to you. You're you're, 0:17:01.116 --> 0:17:02.556 you're wearing the robe, and you're on the bench, and 0:17:02.596 --> 0:17:04.916 everybody's you know, calling you your honor and they're you know, 0:17:04.996 --> 0:17:08.716 there's there's a lot of false deference. I think a 0:17:08.836 --> 0:17:11.876 judge you can make huge mistakes and still fool himself 0:17:11.916 --> 0:17:15.156 into thinking that he was doing great. Jeremy Fogel tried 0:17:15.196 --> 0:17:18.436 to fight this tendency by not allowing himself to forget 0:17:18.516 --> 0:17:21.356 his most terrible mistakes. I mean, the one that always 0:17:21.396 --> 0:17:23.356 comes to mind was when I was doing the Mantle 0:17:23.396 --> 0:17:27.036 Health calendar and this young man was trying to get 0:17:27.196 --> 0:17:32.196 off of conservativeship, and the doctors were saying, no, he's 0:17:33.036 --> 0:17:35.436 managed depressive and he would be dangerous to himself, and 0:17:36.116 --> 0:17:39.916 he persuaded me that he was okay, and he killed 0:17:39.956 --> 0:17:43.276 himself the next day. Judging forces you to make these 0:17:43.316 --> 0:17:46.956 horrible life and death decisions when you really don't know 0:17:47.036 --> 0:17:50.076 the right answer. Jeremy Fogel knows that he's going to 0:17:50.156 --> 0:17:53.436 be wrong sometimes, and so he thinks it's important for 0:17:53.516 --> 0:17:55.756 the people on the receiving end of his judgments to 0:17:55.836 --> 0:17:59.996 sense his humility, his humanity. He thinks judges need to 0:17:59.996 --> 0:18:02.716 be not as book smart, but people smart, so that 0:18:02.756 --> 0:18:06.476 people who leave their courtroom feel okay with what's just happened. 0:18:07.116 --> 0:18:11.516 We need a curriculum. You need to be intentional about 0:18:11.596 --> 0:18:14.276 what we're teaching judges. What kind of judges are we 0:18:14.276 --> 0:18:17.156 trying to grow? You know, the longer Jeremy Foggle is 0:18:17.196 --> 0:18:21.276 a judge, the more worried he becomes about the relationship 0:18:21.316 --> 0:18:26.116 between Americans and their judges. He's right to be worried. 0:18:26.596 --> 0:18:31.156 American judges are being threatened and challenged and exposed as 0:18:31.276 --> 0:18:35.756 never before. You to say, Senator, I would like to 0:18:35.836 --> 0:18:42.556 start by saying, unequivocally, uncategorically that I deny each and 0:18:42.836 --> 0:18:47.436 every single allegation against me today that suggested in any 0:18:47.476 --> 0:18:52.756 way that I had conversations of a sexual nature or 0:18:52.796 --> 0:18:59.996 about pornographic material with Anita Hill. Supreme Court confirmation battles. 0:19:01.076 --> 0:19:04.316 They're now just a ritual in American culture, but they 0:19:04.356 --> 0:19:08.316 have echoes in the daily lives of ordinary judges. Political 0:19:08.356 --> 0:19:11.396 attacks on jeg are on the rise, Physical attacks on 0:19:11.476 --> 0:19:14.196 judges are on the rise, and there's this new demand 0:19:14.236 --> 0:19:16.916 that judges reveal more and more of themselves in their 0:19:16.996 --> 0:19:20.516 lives to us. When I was started writing the norm 0:19:20.636 --> 0:19:25.076 was still for the justices not to grant many, if any, 0:19:25.156 --> 0:19:28.556 on the record interviews, And in fact, the Supreme Court 0:19:28.556 --> 0:19:32.036 at that time didn't even publish transcripts of the arguments 0:19:32.036 --> 0:19:33.836 on the same day, and they would just refer to 0:19:33.916 --> 0:19:37.116 the court rather than an individual justice. That's how impersonal 0:19:37.156 --> 0:19:39.116 the whole thing was supposed to be. In the early nineties. 0:19:39.316 --> 0:19:43.556 Jeff Rosen runs the National Constitution Center in Philadelphia, but 0:19:43.596 --> 0:19:46.276 he used to make his living writing these wonderful profiles 0:19:46.276 --> 0:19:50.356 of Supreme Court justices. And he's watched even Supreme Court 0:19:50.436 --> 0:19:53.956 judges bow to the social pressure to let everyone get 0:19:53.956 --> 0:19:56.356 to know them. Now the transcripts are published on the 0:19:56.396 --> 0:19:58.436 same day, the justices are identified by name, and the 0:19:58.516 --> 0:20:02.076 justices are writing best selling books, and they're appearing not 0:20:02.156 --> 0:20:06.956 only on c spand but on the networks, and they're 0:20:06.956 --> 0:20:09.436 opening themselves up to being just as accessible is all 0:20:09.436 --> 0:20:14.436 the other celebrified figures in our celebrified culture. Honorable the 0:20:14.556 --> 0:20:17.876 Chief Justice and the Associate Justices of the Supreme Court 0:20:17.956 --> 0:20:21.956 of the United States. Something different is going on here 0:20:22.076 --> 0:20:24.756 than what goes on in the Capitol Building or in 0:20:24.796 --> 0:20:27.116 the White House. And you need to appreciate how important 0:20:27.116 --> 0:20:30.356 it is to our system of government. Jeff Rosen doesn't 0:20:30.356 --> 0:20:34.156 approve of any of this. He really doesn't approve. He 0:20:34.236 --> 0:20:36.596 thinks that would all be better off if judges retain 0:20:36.676 --> 0:20:41.076 their old mystique, if they weren't so human. But you 0:20:41.156 --> 0:20:45.756 know what, it's too late, and Jeremy Fogel thinks this 0:20:45.836 --> 0:20:49.476 might be okay. One of the things that will help 0:20:50.436 --> 0:20:56.236 strengthen traditional independence is if the public understands more about judges. 0:20:57.076 --> 0:21:00.836 People don't understand what we do, and what you see 0:21:00.916 --> 0:21:03.956 is that use caricatures, and I think the more you 0:21:03.996 --> 0:21:05.676 can kind of really paint the picture and kind of 0:21:05.676 --> 0:21:07.676 get out there's a job. You know, it's like being 0:21:07.676 --> 0:21:10.116 a doctor, it's like being a teacher, being a fighter pilot. 0:21:10.116 --> 0:21:11.796 I mean, there's a skill set that goes with it, 0:21:11.836 --> 0:21:14.156 and there's a set of values that go with it, 0:21:14.196 --> 0:21:18.076 and that it's inappropriate for people to be like making 0:21:18.116 --> 0:21:20.316 death threats. Yeah. So that part of the problem with 0:21:20.396 --> 0:21:22.836 the judge in American life is that he's so different 0:21:22.876 --> 0:21:25.836 from so much else of American life. Americans go through 0:21:25.916 --> 0:21:28.556 life doing what they feel like doing right, and it's 0:21:28.596 --> 0:21:31.596 hard to imagine themselves into a headspace where they're doing 0:21:31.636 --> 0:21:33.636 things for some reason other than they want to do them. 0:21:33.716 --> 0:21:38.836 That's right, Americans really don't understand refs. Jeremy Fogel felt 0:21:38.836 --> 0:21:42.876 that they needed to, and so in twenty eleven, when 0:21:42.876 --> 0:21:45.476 he was sixty one years old, he did something that 0:21:45.516 --> 0:21:49.156 would have surprised his younger self. He left the bench 0:21:50.396 --> 0:21:54.356 for this thing in Washington called the Federal Judicial Center, 0:21:54.916 --> 0:21:58.596 created by Congress back in the nineteen sixties to improve 0:21:58.636 --> 0:22:04.196 the nation's entire judiciary. Jeremy Fogel agrees to run it. 0:22:05.516 --> 0:22:07.836 He thinks he can use the place to train judges 0:22:07.956 --> 0:22:12.276 in better ways, so they can withstand the new transparency 0:22:12.636 --> 0:22:14.716 and be better than the caricature as we see in 0:22:14.756 --> 0:22:19.756 confirmation battles. Did you consume alcohol during your high school years? Yes, 0:22:19.836 --> 0:22:24.196 we drank beer. My friends and I the boys and girls. 0:22:24.596 --> 0:22:29.396 I liked beer. Still like beer, And I think, you know, 0:22:29.476 --> 0:22:32.396 judges all over the country are really struggling with this. 0:22:32.476 --> 0:22:35.476 I mean, like, how how do we explain to people 0:22:35.516 --> 0:22:37.596 that know? I mean, that's just not who we are, 0:22:37.636 --> 0:22:39.516 it's not what we do, and it's really important that 0:22:39.556 --> 0:22:42.236 you know that. Where do you hear that? I hear it. 0:22:42.276 --> 0:22:44.636 I just hear it from other judges, and I hear 0:22:44.636 --> 0:22:47.196 it from judges as state level and the federal level, 0:22:47.236 --> 0:22:48.716 and you're hearing this in a way you wouldn't have 0:22:48.796 --> 0:22:50.956 heard it when you started your career. That's right. So 0:22:50.996 --> 0:22:53.516 this is changing. It is changing. It is changing. It 0:22:53.636 --> 0:22:55.796 is something that's in the air. Actually, it must be 0:22:55.836 --> 0:22:58.236 more than one thing, because it's new to your nose, 0:22:59.436 --> 0:23:06.276 an entirely new smell. Has anyone told you about the 0:23:06.516 --> 0:23:09.116 what judges you for breakfast study? Tell me about it. 0:23:09.476 --> 0:23:13.596 That's Emily Basilon. She's written so much interesting journalism about 0:23:13.596 --> 0:23:16.916 the American legal system that the Yale Law School has 0:23:16.956 --> 0:23:21.756 made her a research scholar. Okay, so this is at 0:23:21.756 --> 0:23:25.196 this point kind of a famous study in law nerd world. 0:23:26.836 --> 0:23:30.276 Somebody looked at the sentencing decisions that judge is made 0:23:30.596 --> 0:23:34.996 right before lunch and right after lunch, and they found 0:23:35.036 --> 0:23:40.396 that after lunch judges are nicer, and before lunch, when 0:23:40.396 --> 0:23:44.956 presumably they're getting a little peckish, they're meaner. They give 0:23:44.956 --> 0:23:49.316 out longer sentences before lunch than after lunch. That's terrifying. Yeah, 0:23:49.356 --> 0:23:53.436 it really is, because it feels so random, not just random, disturbing. 0:23:54.116 --> 0:23:56.796 I'm not sure anyone ever really believed that human beings 0:23:56.796 --> 0:23:59.636 could be perfectly rational, but people who used to sort 0:23:59.676 --> 0:24:01.676 of believe it, or at least pretend to believe it. 0:24:02.156 --> 0:24:04.356 We created excuses for why we didn't need to pay 0:24:04.396 --> 0:24:06.716 too much attention to what was going on inside of 0:24:06.796 --> 0:24:10.196 judge's minds. I mean, they'd be hand picked to make 0:24:10.236 --> 0:24:13.396 hard decisions. How could there be anything but good at it. 0:24:13.836 --> 0:24:17.596 We had a group of judges trial court judges in Texas, 0:24:17.996 --> 0:24:21.236 really municipal judges, the kind of folks who see traffic 0:24:21.236 --> 0:24:25.596 tickets and fines for restaurants and the like. Jeffrey Klinsky 0:24:25.716 --> 0:24:29.316 teaches at Cornell Law School. He's now almost famous for 0:24:29.396 --> 0:24:33.516 these elaborate experiments involving judges, showing that when it comes 0:24:33.556 --> 0:24:37.436 to making decisions, judges suck in exactly the same way 0:24:37.516 --> 0:24:40.636 as other human beings. In one study, he wanted to 0:24:40.636 --> 0:24:42.916 see if you could screw up judges minds by putting 0:24:42.916 --> 0:24:46.196 some random number into their brains. So he gave them 0:24:46.196 --> 0:24:50.596 a scenario involving a nightclub that violated noise ordinances. The 0:24:50.676 --> 0:24:53.796 judges had to figure out a proper fine, and for 0:24:53.836 --> 0:24:56.236 half of them, we called told them that the club 0:24:56.316 --> 0:24:59.476 was named Club fifty eight, after its street address. For 0:24:59.556 --> 0:25:01.876 the other half. We told them it was Club eleven thousand, 0:25:01.916 --> 0:25:04.996 eight hundred and sixty six after its street address, and 0:25:05.076 --> 0:25:08.396 the fine was three times as high for Club eleven thousand, 0:25:08.556 --> 0:25:11.276 eight hundred sixty six. Two of the judges even in 0:25:11.316 --> 0:25:14.556 fact find the Club eleven thousand, eight hundred and sixty 0:25:14.556 --> 0:25:17.236 six dollars. They thought that, well, that's a clever number. 0:25:17.316 --> 0:25:19.476 Let's put that in and find them. You heard it 0:25:19.516 --> 0:25:24.276 here first, Never ever call your establishment club eleven eight 0:25:24.356 --> 0:25:27.876