Speaker 1: Pushkin. One of the cooler things that happened in the
Speaker 1: last few decades is that scientists have decided that emotions
Speaker 1: are worth studying, and they found new ways to study them,
Speaker 1: not just in people, also in animals. The guy who's
Speaker 1: taken the lead with the animals is a Dutch primatologist
Speaker 1: named Franz Dawal. You know, emotions are sort of taboo topic.
Speaker 1: They used to be, at least, and so most of
Speaker 1: the time we don't explicitly discuss them. We discussed the
Speaker 1: behavior that they produce, but not the emotions themselves. That's
Speaker 1: Dwall himself. He's Dutch but works in Atlanta at Emory University.
Speaker 1: When he started out, no one thought you could study
Speaker 1: the emotions of animals. A lot of people just assumed
Speaker 1: that animals didn't have emotions and scientists shouldn't care if
Speaker 1: they did, but not supposed to talk about mental states
Speaker 1: or feelings or planning or thoughts or whatever. And so
Speaker 1: there was a taboo for one hundred years on talking
Speaker 1: about that. And it's only in the last twenty years
Speaker 1: or so that taboos being lifted, and that the more
Speaker 1: and more scientists are open about internal states, meaning emotions.
Speaker 1: They so clearly drive behavior in both animals and people,
Speaker 1: which brings me to Professor the Wall's most famous experiment.
Speaker 1: I worked with capuccin monkeys for a long time. We
Speaker 1: noticed in our lap that the monkeys were always very
Speaker 1: keenly watching what somebody else would get, not just what
Speaker 1: they themselves get for a task, but also what somebody
Speaker 1: else is getting. So the final experiment that I want
Speaker 1: to mention to you is our fairness study. This is
Speaker 1: the Wall's ted talk about that experiment. Two monkeys in
Speaker 1: cages side by side. The cages are plexiglass, so the
Speaker 1: monkey can see each other and the scientist. They're given
Speaker 1: treats for performing a task. The task is to take
Speaker 1: a rock from a researcher and hand it back to her.
Speaker 1: It doesn't sound so hard, but then you're not a monkey.
Speaker 1: The treat is a slice of cucumber. And if you
Speaker 1: give both of them cucumber for the task, the two
Speaker 1: monkeys side beside, they're perfectly willing to do this twenty
Speaker 1: five times in a row. So cucumber, even though it's
Speaker 1: really only water in my opinion, but cucumber is perfectly
Speaker 1: fine for them, perfectly fine. But then a few rounds in.
Speaker 1: One of the monkeys hands back the rock, and the
Speaker 1: researcher gives that monkey a grape, not a cucumber. Monkeys
Speaker 1: really like grapes, and the other one sees that The
Speaker 1: other monkey stares. She waits her turn. She gets the
Speaker 1: rock and hands it back, gets again cucumber. She looks
Speaker 1: back and forth between the cucumber and the other monkey.
Speaker 1: She just chucked the cucumber back at the researcher. Then
Speaker 1: she goes ape shit. The researcher keeps giving grapes to
Speaker 1: one monkey and cucumbers to the other. She tests a
Speaker 1: rock now against the wall if she needs to give
Speaker 1: it to us, and gets cucumber again. The monkey that
Speaker 1: gets cucumber explodes in anger, climbing the walls of the cage,
Speaker 1: throwing whatever she can get her paws on at the researcher.
Speaker 1: So this is basically the Wall Street protest that you
Speaker 1: see here. At some deep level, monkeys expect life to
Speaker 1: be fair, and so do we. The human sense of
Speaker 1: fairness is not just some sort of mental product some
Speaker 1: sort of countient philosopher would say. Is that it's a
Speaker 1: principle that we have arrived at by reasoning and logic
Speaker 1: or something like that. No, no, there's there's a real
Speaker 1: emotion behind it. And that's why the behind all these
Speaker 1: moral principles that we have. This experiment isn't just about unfairness.
Speaker 1: To have any effect at all, the unfairness has to
Speaker 1: be out in the open. The monkey getting the cucumber
Speaker 1: needs to see the monkey getting the grape. So it's
Speaker 1: also about the relationship between transparency and unfairness. I sometimes
Speaker 1: wonder what would happen if people ever got to see
Speaker 1: all the unfairness in life, if say, some magical new
Speaker 1: technology came along that generally increase the transparency in the world.
Speaker 1: Oh wait, it just did. My name is Michael Lewis,
Speaker 1: and this is against the rules. I show about the
Speaker 1: decline of the human referee in American life and what
Speaker 1: that's doing to our idea of fairness. I was talking
Speaker 1: the other day with a woman named Musa sever She'd
Speaker 1: grown up in Slovenia when it was part of Yugoslavia,
Speaker 1: and she was there in the nineteen nineties when Yugoslavia
Speaker 1: fell apart. Hundreds of thousands were killed, millions more persecuted.
Speaker 1: Musa escaped, but with the new conviction that nothing was
Speaker 1: more important than the rule of law. Justice. She wanted
Speaker 1: everyone everywhere to have it. In two thousand and three,
Speaker 1: she moved to Uzbekistan. Uzbekistan was not an obvious upgrade
Speaker 1: on Slovenia, even at its most terrifying. Well, they had
Speaker 1: a pretty nice constitution, but that was mainly on the paper.
Speaker 1: Security services were controlling everything. A group called Freedom House
Speaker 1: had sent Musa to document what was happening in Uzbeka
Speaker 1: stands prisons. The prisons had become the Uzbek government's torture chambers.
Speaker 1: They had cattle prods and rooms where they hung you
Speaker 1: from your wrists and ankles, other rooms where they beat
Speaker 1: you with robber hoses and smothered you with plastic bags,
Speaker 1: all done in total secrecy, just like the trials that
Speaker 1: had sent people to prison in the first place. And
Speaker 1: what about the judges in the courtroom, where the judges
Speaker 1: were kind of independence? Did they have? No? No, no no.
Speaker 1: That was the old legacy of the Soviet system made
Speaker 1: prosecutors totally in charge of everything. The government. Prosecutors were
Speaker 1: in charge. The judges had zero power. They just took
Speaker 1: orders from the prosecutors. The orders were simple. Any person
Speaker 1: who gets arrested is guilty. As soon as you did
Speaker 1: something that got the police to arrest, that was it.
Speaker 1: You couldn't get out. Can you just describe like you're
Speaker 1: describing to a child, would it felt like to live
Speaker 1: in that system? Well, one person didn't matter. You didn't
Speaker 1: matter at all. So the only way how people tried
Speaker 1: to preserve their safety was they didn't stick out in
Speaker 1: any way. People had to stay hidden. Not because the
Speaker 1: Uzbeks didn't have any laws. They had their nice little constitution.
Speaker 1: What they lacked was an idea at the center of
Speaker 1: any system of justice, the independent judge, the ref in robes,
Speaker 1: the human being charged with ensuring fairness in the court
Speaker 1: of law. When you live in a country that doesn't
Speaker 1: have people like that, you wake up every day to
Speaker 1: the same emotion. Fear that there was always fearing, Yeah,
Speaker 1: fear that if you don't do what the state wants
Speaker 1: you to do, they could eliminate you. The Uzbeks didn't
Speaker 1: invent the police state. They were just more enthusiastic about
Speaker 1: it than most. But in two thousand and sixteen something changed.
Speaker 1: Muy the president died. That was his funeral. He was
Speaker 1: the only president that Uzbekistan had ever had, And the
Speaker 1: new president decided amazingly and without any great revolution, to
Speaker 1: open things up, to create basically from scratch, a legal
Speaker 1: system that included some concept of fairness in practice that
Speaker 1: meant handing actual power to the people who'd never had
Speaker 1: any The judges the refs, which sounds like it should
Speaker 1: be easy for the judges, right, You don't really think
Speaker 1: of them having to learn how to be independent. It's
Speaker 1: like breathing. You do it so long as you're allowed to.
Speaker 1: It turns out that's wrong. The younger ones are those
Speaker 1: usually to make a decision on acquittals and try to
Speaker 1: do things right. The older ones are still they find
Speaker 1: it hard. So if you're a defendant and you walk
Speaker 1: into a courtroom and you see a young judge, you're
Speaker 1: happier than if you see an old judge. Yeah, definitely,
Speaker 1: because only the new judges will acquit you. The old
Speaker 1: guys will still assume you're supposed to be sent directly
Speaker 1: to jail. It's as if they don't want their independence,
Speaker 1: or as if the Uzbek system doesn't know how to
Speaker 1: grant it to them. The Uzbeks have done all kinds
Speaker 1: of things to get the changes to work. They've invited
Speaker 1: American judges to visit to teach them about judicial independence.
Speaker 1: They've opened their courtrooms so people can watch the trials.
Speaker 1: Musa had this idea of staging mock trials so that
Speaker 1: the old guys could see what fairness looked like. So
Speaker 1: we had two trials. On both trials that defense won
Speaker 1: the case. That was such a shock the team of prosecutors,
Speaker 1: and they sent us the best. Didn't you even want
Speaker 1: to shake the hands with the team of defense. They
Speaker 1: were so pieced off, and they would be asking what
Speaker 1: happens to American prosecutor when he loses a case? Does
Speaker 1: he lose a job? Is he punished? They were an
Speaker 1: undefeated team up to that point. Yes, they never lost.
Speaker 1: They never lost because they were not supposed to lose.
Speaker 1: They're not supposed to lose, right, Changing those attitudes must
Speaker 1: not be easy. It's not easy, and you know that's
Speaker 1: why I'm there fifteen years. All of which is to
Speaker 1: say that a system of justice isn't just a bunch
Speaker 1: of laws. A system of justice lives and dies on
Speaker 1: the emotion it evokes, especially feelings about the judges, and
Speaker 1: the judges feelings about their role. So here's what happens.
Speaker 1: We're in front of a very hostile judge. The judge
Speaker 1: was appointed by Barack Obama, federal judge. These feelings can change.
Speaker 1: They're changing right here, right now, because he's given us
Speaker 1: ruling after ruling after ruling, negative, negative, negative. The uzbeks
Speaker 1: have picked a funny moment to emulate the American system
Speaker 1: of justice. They want transparency, they want the people to
Speaker 1: see the judges at work. At the same time, Americans
Speaker 1: are being encouraged to watch their judges more closely than ever,
Speaker 1: and what they see is causing some problems. So I
Speaker 1: walked in, and I mean, I think, I think I
Speaker 1: look younger than I am anyway, and so I think,
Speaker 1: you know, I think, you know, I thought a lot
Speaker 1: of people just assumed guy was, you know, in my
Speaker 1: early twenties or something. You know, this is Jeremy Fogel.
Speaker 1: He was once a judge, but not just any judge.
Speaker 1: A judge you had a gift for watching himself on
Speaker 1: the job. Presiding judge gave me a file and say
Speaker 1: here's your first case. The jury's coming in half an
Speaker 1: hour or something like that. This podcast was bound to
Speaker 1: lead to judges. They're too important to ignore, but they
Speaker 1: usually don't have much to say for themselves. By law,
Speaker 1: they're forbidden from discussing their cases. By custom, they don't
Speaker 1: typically invite you to get to know them. That's why
Speaker 1: I've come to Jeremy Fogel. He's decided that judges have
Speaker 1: no choice but to break their silence because they're being
Speaker 1: watched in new ways, and he's sort of taking the lead.
Speaker 1: Fogel was always a little odd for a judge. He
Speaker 1: went to college during the Vietnam War. He'd studied religion
Speaker 1: and wanted to become a professor, but the war or
Speaker 1: switched on something inside of him made him want to
Speaker 1: do something practical out in the world. I just felt
Speaker 1: like an academic life was going to be too cloistered,
Speaker 1: so law school was kind of something I did, almost
Speaker 1: as an afterthought. He became a public defender, taking the
Speaker 1: cases of people who couldn't afford a lawyer. He saw
Speaker 1: the unfairness of the system, the crazy inequality, the likelihood
Speaker 1: that it would treat a poor person less fairly than
Speaker 1: a rich person. Jeremy was doing what he could directify that,
Speaker 1: but he sensed that he had this thing about him
Speaker 1: that made him less than ideal for the job. You
Speaker 1: can't be the one sided advocate where you you just
Speaker 1: kind of go in and say, well, you know, my
Speaker 1: client's entirely right and these people are entirely wrong. I
Speaker 1: never felt comfortable doing that. He didn't like taking sides,
Speaker 1: which is a problem if you're a lawyer. You know,
Speaker 1: there's there's lawyers who actually believe their clients cases totally right.
Speaker 1: Then there's people who know that it isn't but they
Speaker 1: can play the role. And I wasn't ever really that
Speaker 1: comfortable playing the role at the same time. I mean,
Speaker 1: I was aware of my ethical obligations were and so
Speaker 1: I started to think about, well if you what if
Speaker 1: I were a neutral? A neutral we know now how
Speaker 1: hard they are to find others who knew. Jeremy Fogel
Speaker 1: had the same thought. In nineteen eighty six, Fogel was
Speaker 1: appointed to be a California state judge. It nerve wracking. Well,
Speaker 1: I was really nervous, you know, I didn't know what
Speaker 1: to expect. And no, I don't think I don't I
Speaker 1: know think I ever hit the gavel in my life.
Speaker 1: But but but I just I was never in a
Speaker 1: I was never in a mood where I felt like
Speaker 1: I needed to do that. He wound up running a
Speaker 1: family court without ever once using his gavel. He presided
Speaker 1: over divorces and custody battles. It was emotional, angry, ugly.
Speaker 1: If a judge had some perverse desire to be murdered
Speaker 1: by the people in his courtroom, he'd ask for family
Speaker 1: court duty. Most judges dislike family cord because it's the
Speaker 1: hot zone. Jeremy Fogel didn't just like it. He loved it.
Speaker 1: You know, you have people who are quote normal most
Speaker 1: of the time, who when they're in the middle of
Speaker 1: the divorce or not temporarily, they're temporarily insane. Right, So
Speaker 1: the ability to kind of step in and bring a
Speaker 1: little bit of order to the situation actually was something
Speaker 1: I felt very positive about. And how did you do that?
Speaker 1: I mean, I think a lot of it was just
Speaker 1: just listening and trying to figure out what's really going on.
Speaker 1: And you know, they're fighting about who gets the dog.
Speaker 1: You know, they're fighting about who gets the piano or
Speaker 1: you knows, And I just said, it's not about the piano,
Speaker 1: you know, this is this is a power struggle, you know.
Speaker 1: So I would say parties, I would bring them in
Speaker 1: for mediations. They would talk to me about this, you know,
Speaker 1: and so you know, you would kind of dig down
Speaker 1: and you could sort of see what the underlying problem was,
Speaker 1: and then you could say, well, how are we gonna
Speaker 1: how are we going to move forward here? You know,
Speaker 1: how are we going to get you folks divorce? Because
Speaker 1: that's really what needs to happen. Right, you're getting a
Speaker 1: feel for him. A born neutral, some people just are.
Speaker 1: Jeremy Fogel thinks he caught the trait from growing up
Speaker 1: with a volatile father, from wanting life at home to
Speaker 1: just calm him down anyway. Judging suits him. In nineteen
Speaker 1: ninety seven, Bill Clinton appoints him to the United States
Speaker 1: Court for the District of Northern California. It's the big time.
Speaker 1: He goes from being one of tens of thousands of
Speaker 1: state judges to one of only two thousand federal judges.
Speaker 1: He's got life tenure in this job that he totally loves.
Speaker 1: But now he's noticing things and they're pulling him outside
Speaker 1: of himself, causing him to watch himself meta judging. And
Speaker 1: it's actually really hard to be humble when you're a
Speaker 1: judge because the the everybody's countown to you. You're you're,
Speaker 1: you're wearing the robe, and you're on the bench, and
Speaker 1: everybody's you know, calling you your honor and they're you know,
Speaker 1: there's there's a lot of false deference. I think a
Speaker 1: judge you can make huge mistakes and still fool himself
Speaker 1: into thinking that he was doing great. Jeremy Fogel tried
Speaker 1: to fight this tendency by not allowing himself to forget
Speaker 1: his most terrible mistakes. I mean, the one that always
Speaker 1: comes to mind was when I was doing the Mantle
Speaker 1: Health calendar and this young man was trying to get
Speaker 1: off of conservativeship, and the doctors were saying, no, he's
Speaker 1: managed depressive and he would be dangerous to himself, and
Speaker 1: he persuaded me that he was okay, and he killed
Speaker 1: himself the next day. Judging forces you to make these
Speaker 1: horrible life and death decisions when you really don't know
Speaker 1: the right answer. Jeremy Fogel knows that he's going to
Speaker 1: be wrong sometimes, and so he thinks it's important for
Speaker 1: the people on the receiving end of his judgments to
Speaker 1: sense his humility, his humanity. He thinks judges need to
Speaker 1: be not as book smart, but people smart, so that
Speaker 1: people who leave their courtroom feel okay with what's just happened.
Speaker 1: We need a curriculum. You need to be intentional about
Speaker 1: what we're teaching judges. What kind of judges are we
Speaker 1: trying to grow? You know, the longer Jeremy Foggle is
Speaker 1: a judge, the more worried he becomes about the relationship
Speaker 1: between Americans and their judges. He's right to be worried.
Speaker 1: American judges are being threatened and challenged and exposed as
Speaker 1: never before. You to say, Senator, I would like to
Speaker 1: start by saying, unequivocally, uncategorically that I deny each and
Speaker 1: every single allegation against me today that suggested in any
Speaker 1: way that I had conversations of a sexual nature or
Speaker 1: about pornographic material with Anita Hill. Supreme Court confirmation battles.
Speaker 1: They're now just a ritual in American culture, but they
Speaker 1: have echoes in the daily lives of ordinary judges. Political
Speaker 1: attacks on jeg are on the rise, Physical attacks on
Speaker 1: judges are on the rise, and there's this new demand
Speaker 1: that judges reveal more and more of themselves in their
Speaker 1: lives to us. When I was started writing the norm
Speaker 1: was still for the justices not to grant many, if any,
Speaker 1: on the record interviews, And in fact, the Supreme Court
Speaker 1: at that time didn't even publish transcripts of the arguments
Speaker 1: on the same day, and they would just refer to
Speaker 1: the court rather than an individual justice. That's how impersonal
Speaker 1: the whole thing was supposed to be. In the early nineties.
Speaker 1: Jeff Rosen runs the National Constitution Center in Philadelphia, but
Speaker 1: he used to make his living writing these wonderful profiles
Speaker 1: of Supreme Court justices. And he's watched even Supreme Court
Speaker 1: judges bow to the social pressure to let everyone get
Speaker 1: to know them. Now the transcripts are published on the
Speaker 1: same day, the justices are identified by name, and the
Speaker 1: justices are writing best selling books, and they're appearing not
Speaker 1: only on c spand but on the networks, and they're
Speaker 1: opening themselves up to being just as accessible is all
Speaker 1: the other celebrified figures in our celebrified culture. Honorable the
Speaker 1: Chief Justice and the Associate Justices of the Supreme Court
Speaker 1: of the United States. Something different is going on here
Speaker 1: than what goes on in the Capitol Building or in
Speaker 1: the White House. And you need to appreciate how important
Speaker 1: it is to our system of government. Jeff Rosen doesn't
Speaker 1: approve of any of this. He really doesn't approve. He
Speaker 1: thinks that would all be better off if judges retain
Speaker 1: their old mystique, if they weren't so human. But you
Speaker 1: know what, it's too late, and Jeremy Fogel thinks this
Speaker 1: might be okay. One of the things that will help
Speaker 1: strengthen traditional independence is if the public understands more about judges.
Speaker 1: People don't understand what we do, and what you see
Speaker 1: is that use caricatures, and I think the more you
Speaker 1: can kind of really paint the picture and kind of
Speaker 1: get out there's a job. You know, it's like being
Speaker 1: a doctor, it's like being a teacher, being a fighter pilot.
Speaker 1: I mean, there's a skill set that goes with it,
Speaker 1: and there's a set of values that go with it,
Speaker 1: and that it's inappropriate for people to be like making
Speaker 1: death threats. Yeah. So that part of the problem with
Speaker 1: the judge in American life is that he's so different
Speaker 1: from so much else of American life. Americans go through
Speaker 1: life doing what they feel like doing right, and it's
Speaker 1: hard to imagine themselves into a headspace where they're doing
Speaker 1: things for some reason other than they want to do them.
Speaker 1: That's right, Americans really don't understand refs. Jeremy Fogel felt
Speaker 1: that they needed to, and so in twenty eleven, when
Speaker 1: he was sixty one years old, he did something that
Speaker 1: would have surprised his younger self. He left the bench
Speaker 1: for this thing in Washington called the Federal Judicial Center,
Speaker 1: created by Congress back in the nineteen sixties to improve
Speaker 1: the nation's entire judiciary. Jeremy Fogel agrees to run it.
Speaker 1: He thinks he can use the place to train judges
Speaker 1: in better ways, so they can withstand the new transparency
Speaker 1: and be better than the caricature as we see in
Speaker 1: confirmation battles. Did you consume alcohol during your high school years? Yes,
Speaker 1: we drank beer. My friends and I the boys and girls.
Speaker 1: I liked beer. Still like beer, And I think, you know,
Speaker 1: judges all over the country are really struggling with this.
Speaker 1: I mean, like, how how do we explain to people
Speaker 1: that know? I mean, that's just not who we are,
Speaker 1: it's not what we do, and it's really important that
Speaker 1: you know that. Where do you hear that? I hear it.
Speaker 1: I just hear it from other judges, and I hear
Speaker 1: it from judges as state level and the federal level,
Speaker 1: and you're hearing this in a way you wouldn't have
Speaker 1: heard it when you started your career. That's right. So
Speaker 1: this is changing. It is changing. It is changing. It
Speaker 1: is something that's in the air. Actually, it must be
Speaker 1: more than one thing, because it's new to your nose,
Speaker 1: an entirely new smell. Has anyone told you about the
Speaker 1: what judges you for breakfast study? Tell me about it.
Speaker 1: That's Emily Basilon. She's written so much interesting journalism about
Speaker 1: the American legal system that the Yale Law School has
Speaker 1: made her a research scholar. Okay, so this is at
Speaker 1: this point kind of a famous study in law nerd world.
Speaker 1: Somebody looked at the sentencing decisions that judge is made
Speaker 1: right before lunch and right after lunch, and they found
Speaker 1: that after lunch judges are nicer, and before lunch, when
Speaker 1: presumably they're getting a little peckish, they're meaner. They give
Speaker 1: out longer sentences before lunch than after lunch. That's terrifying. Yeah,
Speaker 1: it really is, because it feels so random, not just random, disturbing.
Speaker 1: I'm not sure anyone ever really believed that human beings
Speaker 1: could be perfectly rational, but people who used to sort
Speaker 1: of believe it, or at least pretend to believe it.
Speaker 1: We created excuses for why we didn't need to pay
Speaker 1: too much attention to what was going on inside of
Speaker 1: judge's minds. I mean, they'd be hand picked to make
Speaker 1: hard decisions. How could there be anything but good at it.
Speaker 1: We had a group of judges trial court judges in Texas,
Speaker 1: really municipal judges, the kind of folks who see traffic
Speaker 1: tickets and fines for restaurants and the like. Jeffrey Klinsky
Speaker 1: teaches at Cornell Law School. He's now almost famous for
Speaker 1: these elaborate experiments involving judges, showing that when it comes
Speaker 1: to making decisions, judges suck in exactly the same way
Speaker 1: as other human beings. In one study, he wanted to
Speaker 1: see if you could screw up judges minds by putting
Speaker 1: some random number into their brains. So he gave them
Speaker 1: a scenario involving a nightclub that violated noise ordinances. The
Speaker 1: judges had to figure out a proper fine, and for
Speaker 1: half of them, we called told them that the club
Speaker 1: was named Club fifty eight, after its street address. For
Speaker 1: the other half. We told them it was Club eleven thousand,
Speaker 1: eight hundred and sixty six after its street address, and
Speaker 1: the fine was three times as high for Club eleven thousand,
Speaker 1: eight hundred sixty six. Two of the judges even in
Speaker 1: fact find the Club eleven thousand, eight hundred and sixty
Speaker 1: six dollars. They thought that, well, that's a clever number.
Speaker 1: Let's put that in and find them. You heard it
Speaker 1: here first, Never ever call your establishment club eleven eight
Speaker 1: hundred and sixty six, or mention any other random big
Speaker 1: number to a judge in the process of finding you,
Speaker 1: or for that matter, think that the judge is any
Speaker 1: more capable than other human beings at checking himself before
Speaker 1: he screws up. Eighty six percent of automobile drivers say
Speaker 1: they're less likely than the median driver to get into
Speaker 1: a car accident. People always think they're above average, especially
Speaker 1: when it comes to something they care about. But most
Speaker 1: trial judges care about is not having their rulings overturned.
Speaker 1: So we asked them, how likely are you, relative to
Speaker 1: the median judge in this room to be overturned on appeal?
Speaker 1: And indeed, eighty seven percent of them said they were
Speaker 1: less likely than the median judge to be overturned on appeal.
Speaker 1: Later on, we asked a group of judges, is how
Speaker 1: effective are you at avoiding race or gender bias in
Speaker 1: your decisions? And nine of them are better than the
Speaker 1: median judge at that. There's a long list of stuff
Speaker 1: like this. It's the same stupid stuff that all people do.
Speaker 1: The evidence has been piling up that judges are no
Speaker 1: more than human at a time when being human is
Speaker 1: maybe less flattering than it's ever been. It's funny how
Speaker 1: neatly you can map what's happening to sports referees onto judges.
Speaker 1: They've always had their biases, we're just getting better at
Speaker 1: seeing them. We now know that sports refs, who are
Speaker 1: made aware of their biases they make better calls. Same
Speaker 1: should be true of judges, right, I mean, once you
Speaker 1: know that you send people to jail longer right before
Speaker 1: lunch than you do right after lunch, you can start
Speaker 1: to watch your blood sugar. But as with sports refs,
Speaker 1: a lot of people clearly believe that judges are getting worse.
Speaker 1: It's as if we've demanded to know the truth without
Speaker 1: realizing we can't handle the truth. Wait, it's such a
Speaker 1: paradox that if we become more honest about the ways
Speaker 1: in which someone's values and politics inform their judicial decisions,
Speaker 1: that were somehow doing them a disservice. I'm talking to
Speaker 1: Emily Basilon again. You know, it's funny. It's like the
Speaker 1: system does much better if nobody's paying too much attention
Speaker 1: to it. I think that's absolutely true. I mean, there's
Speaker 1: something useful about the fiction that there is a totally
Speaker 1: separate group of people called judges. They wear black robes,
Speaker 1: they're Olympian, they're doing their own thing, and they're handing
Speaker 1: down decisions from un high It's not true, right, I mean,
Speaker 1: I really think it's like a kind of an idealized
Speaker 1: notion of the law that is essentially false, because people's
Speaker 1: prior beliefs and their values do shape the decisions they
Speaker 1: make when they have real choice. Right. And Yet I'm
Speaker 1: torn because when we had the fiction that judges were
Speaker 1: doing some totally different thing, it was easier, I think,
Speaker 1: for them to try to measure impartiality in that way,
Speaker 1: to try to adhere to that standard. But it's hard
Speaker 1: to imagine how the fiction would be restored. Oh yes,
Speaker 1: it's gone. How long have baby judges been taught about
Speaker 1: the importance of their emotions since twenty thirteen, so this
Speaker 1: is a new thing. It's a new thing. Yeah. Her
Speaker 1: name is Terry Moroney. She teaches LRD Vanderbilt. Jeremy Fogo
Speaker 1: brought her in to teach judges in the new program
Speaker 1: he created at the Federal Judicial Center Baby Judge School,
Speaker 1: they call it new Judges now learn all about the
Speaker 1: sorts of things they never used to have to think about,
Speaker 1: like the mental errors to which all human beings are prone,
Speaker 1: and their emotions. The law has maintained this very odd
Speaker 1: fiction that emotion is a relevant to law and that
Speaker 1: laws all about rationality, when pretty much every other discipline
Speaker 1: in the world understands that emotion is central to all
Speaker 1: aspects of human life. It's funny because I think historically,
Speaker 1: if you'd ask people, they said, an emotional judge can't
Speaker 1: be as fair as an unemotional judge. And what you're
Speaker 1: saying is the emotions are always there, and it's the
Speaker 1: judge doesn't recognize them, who can't who won't be fair?
Speaker 1: That's correct. Yeah, The emotional lives of judges have been
Speaker 1: discovered at roughly the same time as the emotional lives
Speaker 1: of monkeys. It turns out they have a lot in common,
Speaker 1: which is why Jeremy Fogel put emotional training at the
Speaker 1: center of Baby Judge School. I wonder if you've going
Speaker 1: back in history and tried to introduce this curriculum in
Speaker 1: an earlier point in the history of the judiciary, if
Speaker 1: people would have responded the same way. Said a really
Speaker 1: interesting thought experiment, because when I was a California State judge,
Speaker 1: I was involved in working with the California version of
Speaker 1: the FJC and actually designed a class that looked at this,
Speaker 1: and the general responds from judges at that time was,
Speaker 1: you know, I just want to do my job, and
Speaker 1: you know I don't. They didn't. They didn't say anything
Speaker 1: like I didn't I don't have any feelings, but they
Speaker 1: just said, I mean, I don't want to I don't
Speaker 1: really want to go there. I don't need to go there.
Speaker 1: And if it was somehow irrelevant to the job exactly,
Speaker 1: the fiction is collapsing or has collapsed about who what
Speaker 1: a judge is and what's inside a judge and how
Speaker 1: it judge functions, and it's going to have to be
Speaker 1: replaced by something else, right, and you're trying to you're
Speaker 1: trying to work towards what it gets replaced by exactly.
Speaker 1: I mean, that's exactly what I'm trying to do. It.
Speaker 1: The general idea of baby Judge School is to turn
Speaker 1: judges into people who can judge themselves as well as others,
Speaker 1: because the job's putting these new pressures on judges, and
Speaker 1: if judges don't learn to cope, the pressures will crack
Speaker 1: them and make the entire situation and even worse. And
Speaker 1: when you start to baby like everybody else, you're gonna
Speaker 1: get treated like that. That's exactly what the problem was.
Speaker 1: And I think that's what really upset me and ended
Speaker 1: upset a lot of judges, I know, and your respective
Speaker 1: of ideology, you know. But then so then what's the
Speaker 1: you know, what's the remedy or is there a remedy
Speaker 1: or you know, it's it just was we didn't nobody
Speaker 1: likes seeing that this whole two week effort has been
Speaker 1: a calculated and orchestrated political hit, almost by himself. Justice
Speaker 1: Kavanaugh killed any doubts that emotions inside judges might be
Speaker 1: a problem, fueled with apparent pent up anger about President
Speaker 1: Trump and the twenty sixteen election fear that has been
Speaker 1: unfairly stoked about my judicial record, revenge on behalf of
Speaker 1: the Clintons, and millions of dollars in money from outside
Speaker 1: left wing opposition groups. The question I guess I have
Speaker 1: is how much can be done about it? Even with
Speaker 1: the best coaching I come in. I'm a baby judge.
Speaker 1: You know, I don't really care about other people's feeling.
Speaker 1: I don't look you in the eye. But I'm very
Speaker 1: reasonable and I got as, I got AIS and all
Speaker 1: my classes in law school and eight under too, my
Speaker 1: LSA t right, and I can write a really cool brief. However,
Speaker 1: I don't feel your pain. What do you do to
Speaker 1: school me? Well, you know there's a very long answer
Speaker 1: to that, and that's a lifetime of work. Carry maroney again,
Speaker 1: give me, give me an example, just one example of
Speaker 1: a of a tool. I want a tool. Yes, So
Speaker 1: one tool is situation modification. You can modify some aspects
Speaker 1: of this situation to enable you to be in greater
Speaker 1: control and give you time and space to self reflect
Speaker 1: into act. So sometimes it's as simple as taking a break.
Speaker 1: Let me stop here. Like all of these feelings and
Speaker 1: the tools that you might give them to deal with
Speaker 1: these feelings. This will make I can see why this
Speaker 1: would help make the judge feel better about about himself
Speaker 1: and about his job and able to sleep at night. Yeah, which,
Speaker 1: actually it's not going to actually affect the sentencing, is it. Well,
Speaker 1: it could actually because again, think about a judge who says,
Speaker 1: I realized that I didn't want to send it in anger.
Speaker 1: Anger makes you very punitive. That's part of what it's for.
Speaker 1: That's the tendency that it evokes in humans as to
Speaker 1: attach responsibility and to take punitive action in response to it.
Speaker 1: In a funny way, American judges are in the same
Speaker 1: situation as the judges in Uzbekistan. They're being forced to
Speaker 1: adapt to a new environment. Mister Trump tweeted last week
Speaker 1: about the Seattle judge for ruling against his executive order
Speaker 1: on immigration, only the American environment is increasingly driven by emotion,
Speaker 1: saying so the opinion of this so called judge, which
Speaker 1: essentially takes law enforcement away from our country, is ridiculous
Speaker 1: and will be overturned. That judge, James Robart, immediately became
Speaker 1: a target on social media, with one person even calling
Speaker 1: him a dead man walking. This is Jeremy Fogel's worst nightmare.
Speaker 1: So Judge Robart, who was the judge in Seattle who
Speaker 1: did the travel band case, got over a million emails.
Speaker 1: He got death threats, and the death threats the Marshal
Speaker 1: Service determined were credible enough that they had to give
Speaker 1: him twenty four hour protection. And what facilitated all of
Speaker 1: that was was social media. Are there other judges like Robot?
Speaker 1: Sure the Ninth Circuit judges who reviewed Robart's decision that
Speaker 1: got the same as a judge Jeremy Fogel had upset
Speaker 1: people with his rulings back in two thousand and six.
Speaker 1: He had blocked the execution of a man who had
Speaker 1: raped and strangled the seventeen year old girl. After Fogel's ruling,
Speaker 1: people went crazy. But crazy in two thousand and six
Speaker 1: is different from crazy now. The point is that everything
Speaker 1: is amplified and sped up, and there's just no way
Speaker 1: you can respond to that. Judges are precluded by the
Speaker 1: Code of Conduct from commenting on pending cases. These forces
Speaker 1: of it that are antagonistic to judicial authority. I've gained
Speaker 1: enormous strength, and there's not a corresponding gain in in
Speaker 1: the forces. In the strength of the forces that might
Speaker 1: defend authority. That's right. I think there are steps along
Speaker 1: the way, and that one of the most important qualities
Speaker 1: judges in America have right now is that people believe
Speaker 1: in their independence. Emily Basilon with one final thought, if
Speaker 1: that starts to break down in a really serious way,
Speaker 1: then even if they technically remain independent, wouldn't they start
Speaker 1: to feel tempted more and more to do whatever is
Speaker 1: politically expedient. But if they stop behaving in any plausible
Speaker 1: way as if they're independent, then aren't we on our
Speaker 1: way to Uzbekistan? America Obviously isn't Uzbekistan. The Uzbek judges
Speaker 1: lived in a black box. The American judge lives in
Speaker 1: a plex a glass cage. The Uzbeks had no ability
Speaker 1: to criticize their system of justice or even to see
Speaker 1: how it really worked. We watch our judges as they've
Speaker 1: never been watched before. It's not that all eyes are
Speaker 1: upon judges when they do their jobs. It's that all
Speaker 1: eyes are upon them when they do their jobs in
Speaker 1: unpopular ways. When some subset of the population feels that
Speaker 1: it's being handed a cucumber when it deserves a grape.
Speaker 1: People from the Supreme Court of Ukraine came to visit
Speaker 1: and so in this meeting with them, and they say, well,
Speaker 1: you know what happens when you rule against the government,
Speaker 1: and so nothing, you know, if the government doesn't like
Speaker 1: the ruling, they appeal, you know, but nothing happens to me,
Speaker 1: you know. And they thought I was being disrespectful, that
Speaker 1: I wasn't being truthful with them. He was being truthful.
Speaker 1: But there's more than one way to attack the independence
Speaker 1: of judges. You don't need to completely eliminate it. All
Speaker 1: you need to do is to generate sufficient mistry trust
Speaker 1: of their judgments, and then it isn't long before every
Speaker 1: judge is just a little bit frightened to do her job.
Speaker 1: The Ninth Circuit we're gonna have to look at that,
Speaker 1: because every case, no matter where it is, they file it.
Speaker 1: And what's called the Ninth Circuit. This was an Obama judge.
Speaker 1: And I'll tell you what, It's not gonna happen like
Speaker 1: this anymore. She tests her rock now against the wall.
Speaker 1: She needs to give it to us and cumber again.
Speaker 1: There's one big practical difference between experimental monkeys and human beings.
Speaker 1: The monkeys at least pretend to respect their referees, the
Speaker 1: people who work with them, and the scientists really do
Speaker 1: want the best for the monkeys. The researchers piss them
Speaker 1: off by giving one a cucumber and another a grape,
Speaker 1: but they don't allow them to stay pissed off. And
Speaker 1: how long do the feelings linger? Oh, then I don't know.
Speaker 1: We usually by the end of the experiment, because these
Speaker 1: monkeys live in the group, they don't live in these
Speaker 1: test chambers. By the end of the experiment, we give
Speaker 1: them a lot of food and all very happy, and
Speaker 1: then they are sent back to the group. So we
Speaker 1: never know how long how long they're mad, because we
Speaker 1: don't want them to be frustrated by the experiment. People
Speaker 1: aren't given that chance. Our experiment is called life, and
Speaker 1: it's frustrating when we see unfairness. We aren't sent to
Speaker 1: some decompression chamber to calm down before rejoining our fellow
Speaker 1: human beings. We look around for something or someone to attack,
Speaker 1: and at some point we see the judge. I'm Michael Lewis,
Speaker 1: thanks for listening to Against the Rules. Against the Rule
Speaker 1: is brought to you by Pushkin Industries. The show is
Speaker 1: produced by Audrey Dilling and Katherine Giredo, with research assistance
Speaker 1: from Zoe, Oliver Gray and Beth Johnson. Our editor is
Speaker 1: Julia Barton. Mia Lobell is our executive producer. Our theme
Speaker 1: was composed by Nick Brittel, with additional scoring by Seth Samuel,
Speaker 1: mastering by Jason Gambrel. Our show was recorded by Tofa
Speaker 1: Ruth at Northgate Studios in Berkeley. Special thanks to our founders,
Speaker 1: Jacob Weisberg and Malcolm Gladwell.