Sunday, January 17, 2010

On fairness in judging

Here are two propositions: First, we want our judges to act without fear or favor, without prejudice for or against any party. Second, everyone is prejudiced, in some measure. How do these two propositions fit together?

One could argue, of course, that the second proposition is wrong -- that some people are truly without prejudice, and those are the ones we try to select as judges. There certainly are people without one form of prejudice or another. There may be many Jews and non-Jews, for instance, who really are entirely unmoved by whether a particular person whom they encounter or judge is, or is not, Jewish. But even these tolerant, or secular, people may not be unprejudiced about some religions. As a general proposition, everyone's tolerance has limits. And there is depressing evidence that vast proportions of Americans have enough racial prejudice in them that they instinctively stereotype quickly-displayed photos; their next reaction may be to try to blot out this instinctive leap, but their first reaction is shaped by the powerful social stereotypes of their world. (See Malcolm Gladwell's account, in his book Blink: The Power of Thinking Without Thinking (2005), of the "Implicit Association Test.") How could it be otherwise?

So if we say that we want judges without prejudice, we are asking, in general, for the impossible.

Can we say, instead, that we want judges who will judge without prejudice -- that is, who will be able to put aside their prejudices and judge without being influenced by them?

Well, yes, to some extent. We can certainly set up situations where judges are less likely to be influenced by their prejudices than they would be in other contexts. Perhaps the classic example is the practice in today's orchestras of doing tryouts with the candidate performers behind screens, so that the judges do not know the candidates' names, or even -- and in particular -- their gender (or race). If the judges imagine that only women, for instance, can play instruments at the level required for a great orchestra, they will be simply unable to bring this prejudice to bear. Perhaps they will even shed this prejudice when they encounter the results of the blind auditions. Back in the world of courts, the elaborate efforts that we make in the rules of procedure and evidence to insure that judges really do hear both sides are all efforts to avoid at least one natural result of prejudice, the tendency to believe at once the people with whom you already sympathize. (These rules also combat another, less "political" form of prejudice -- the tendency to believe the person you hear first.)

That's good. But a court of law is not like a blind orchestra audition, nor should it be. Judges (and jurors) are engaged in judging people, and they can and should take what they know about people into account as they do so. The moment they do, however, they take into account not only what they truly know but what they deeply, even unconsciously, believe. In short, they take into account their prejudices.

So, what to do? More in a future post.

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