As a law student in the 1970s, I was drawn to the endeavor of “judging.” I did not think so much about “being” a judge, but rather the careful artistry that would be demanded of anyone in such a job, and the intellectual challenges that would be presented. I felt that trial judges were vitally involved in the important day-to-day operation of the justice system in which people’s problems were resolved, but in which the judge had no stake, or bias, in the outcome. The prospect of applying the law to human beings was the ultimate role for a lawyer, at least to me.
Martha C. Nussbaum agrees with me. In her popular 1995 book, “Poetic Justice: The Literary Imagination and Public Life,” she puts forth the compelling theory that “judging” well means to judge with the balanced detachment of a “judicious spectator.” As described by Adam Smith:
“The spectator must endeavor … to put himself [or herself] in the situation of the other and to bring home to himself [or herself] every little circumstance of distress which can possibly occur in the sufferer. [S]he must adopt the whole case of his [or her] companion with all its minutest incidents …”
Nussbaum further explains that “… a spectator … is not personally involved … although [s]he cares about the participants … [S]He will not, therefore, have such emotion and thoughts as relate to his [or her] own personal safety and happiness …”
But beyond the empathetic quality, Nussbaum further deducts that every judge must think like a novelist. Specifically, “the ability to think of people’s lives in the novelist’s way is … an important part of the equipment of a judge.” The idea that a judge must be literary-minded follows naturally, it would seem. Judges must confront people, address peoples’ behavior, weigh peoples’ emotions, and assess the tangible facts of human experience. More importantly, all of that must be interpreted in the context of the judge’s own human experience. The skill to do all that, Nussbaum says, is the same skill Mark Twain or John Grisham use to get “close to the people and their actual experience … [and] able to be fair and to perform [one’s] own detached evaluation …” This is what it means to be truly neutral, but truly engaged.
Every trial judge must balance the letter of the law with the conscience of the community. The ability to do that adequately is the ability to have “rational emotion” and be the “judicious spectator.” A judge must be able to put any case in a full social and human context before applying the technical rules of the law. To do otherwise is to lose the most important and powerful tool upon which every judge must rely: the ability to feel. If decisions are made without feeling, then the process becomes judgmental and automatic, not “judging.” We judges do not have to yield to our feelings, but they must be availing, or else we function like robots.
The best law is informed by the human experience of the lawmaker because legal decisions are decisions about people. Like a novelist, a judge can only make sense of his or her endeavor by developing a jurisprudence about how law relates to life, by balancing one’s feeling with one’s intellect. Determining justice in any given set of facts requires nothing less.
As I look back on my first instincts about judging, I think I was right about what a judge should do. But, now, I am still working on “being” a judge. That is a lifelong challenge. Many people’s lives are affected by my decisions. So, in a small way every day, I work like a novelist, writing my great American novel, telling the story of my own jurisprudence. Unlike a novelist, however, my critics are immediate, and my work can be overruled. So, I am careful. I am sympathetic. I am impartial. But, I care about the people. Above all, I try to feel for them, so that I can decide the law for them in the way that it was written: by humans, for humans.•
• Judge David J. Dreyer has been a judge for the Marion Superior Court since 1997. He is a graduate of the University of Notre Dame and Notre Dame Law School. He is a former board member of the Indiana Judges Association. The opinions expressed are those of the author.