The Importance of an Unsympathetic Judge

By Dave Yost

A judge's black robe is a symbol of impartiality - a head-to-toe cloaking of the self, of all the human passions and weaknesses and individual characteristics that attend a person. Judge Sonia Sotomayor appears to believe that her heart belongs on the sleeve of that robe, and a thoughtful senator might conclude it makes her a poor judge.

Judge Sotomayor and the president who nominated her to the U.S. Supreme Court have made it clear that her empathy and sympathy are among her qualifications for the bench. But those qualities have traditionally been frowned upon in a judge -- for the same reason that judges wear that black robe. It's not about the judge, it's about justice -- and both sides deserve to have the case heard on the merits.

Canon I of the ABA Model Code of Judicial Conduct reads in part:

"A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary..."

That seems clear enough. "Impartial" means "not favoring one side or the other."

Of course, there is a proper place for empathy and sympathy in public life - in the political branches of government. A congressman or a mayor or senator or a governor ought to be sympathetic, and to empathize with the plight of the governed. (That may be difficult, of course, if that plight is made more dire by the ministry of the elected official.)

But importing sympathy onto the bench will make it something it is not, and should not be: a political forum.

In Ohio, judges are required to give an oath by statute (Ohio Revised Code §3.23, for those of you who like to look up such things.) Here it is:

"I, (name), do solemnly swear that I will support the Constitution of the United States and the Constitution of Ohio, will administer justice without respect to persons, and will faithfully and impartially discharge and perform all of the duties incumbent upon me as (name of office) according to the best of my ability and understanding." (emphasis added)

We explain it in a little more depth to jurors. This jury instruction is given in every trial in Ohio:

Circumstances in the case may arouse sympathy for one party or the other. Sympathy is a common, human emotion. The law does not expect you to be free of such normal reactions. However, the law and your oath as jurors require you to disregard sympathy and not to permit it to influence your verdict.

You must not be influenced by any consideration of sympathy or prejudice. It is your duty to weigh the evidence, to decide the disputed questions of fact, to apply the instructions of law to your findings and to render your verdict(s) accordingly. Your duty as jurors is to arrive at a fair and just verdict.

That's the duty of a judge, too. A judge who cannot disregard sympathy isn't a judge. She's an advocate.

Dave Yost is the Delaware Co., OH prosecuting attorney, and a candidate for Ohio Attorney General. Find out more at DaveYost.com.

NOTE: A federal judge's oath is set by the Constitution - to uphold the Constitution. I am aware that a state court oath, or a jury instruction, is not applicable to a federal judge. But Ohio's discussion of the role of the court is typical among the states, and of Western jurisprudence. It is offered for purposes of understanding that traditional role, not to demonstrate some binding legal precedent.

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