Some judges might have you believe their rulings are entirely the result of impartial analysis. But judges are not “automatons,” according to former federal judge Nancy Gertner; they’re people whose life experiences impact the work they do every day
Gertner spoke about the gender discrimination she faced as a young attorney and how those experiences shaped her decisions and conduct on the bench years later during her keynote speech Friday at the University of Baltimore School of Law’s ninth annual Feminist Legal Theory Conference.
Gertner said her views on the role of experience in judicial decision-making contrast sharply with other judges — including many women — who argue there is no meaningful difference between the way equally qualified male and female judges hear cases.
“Each of us is a person with diverse experiences; each of us brings to the bench the experiences that affect our view and decision-making,” said Gertner, who served in U.S. District Court in Massachusetts from 1994 until 2011. “The question is not whether to let that into your judging, the question is how.”
The concept will form the backbone of a book Gertner said she is working on about her time on the bench, a follow-up to her memoir, “In Defense of Women,” in which she recounted her time as an attorney handling mainly discrimination and criminal defense cases.
“I think it’s important to make explicit what is in fact implicit in the decision-making of every judge,” Gertner said. “To pretend that you make decisions in the abstract, without these influences, means that you don’t struggle with these influences. It’s important to describe the struggle so you can describe the legitimate way of dealing with the struggle.”
In other words, while it’s important that more women are serving as judges from a gender-equity perspective, she said, it’s also important from the perspective of the parties who bring their grievances to the courtroom.
“Gender balance is more than just representation,” Gertner said. “My judging was different, the content of my decision was different, my approach was different — I was different. I was an outsider.”
Having represented underprivileged clients and those who lacked access to justice was a powerful influence on the way Gertner later presided over a courtroom, she said. It impacted decisions to grant hearings and affected her commitment to allow for “spirited discussions” in the courtroom. The experience of being a young female attorney representing powerless clients led her as a judge to permit court proceedings to continue over the sound of a crying child, if that was the only way for the child’s mother to be present in court for the father’s case.
The factors that influenced her decisions went far beyond gender, she said. Race, class, religion and other elements of identify and life experience all shape the way a judge might consider a particular case.
Hearing a case in which a police officer is accused of misconduct requires a judge to evaluate the defendant’s integrity, for example, but those evaluations are invariably influenced by the judge’s perspective, she said.
“People make credibility determinations,” Gertner said. “If you are a judge from the suburbs whose only encounters with police officers have been fabulous, the threshold for believing he did something wrong is a lot higher for you than for me.”
That doesn’t mean automatically assuming the officer is lying, Gertner said, but it means that she “could envision that possibility” in a way a judge with a different background might not be able to.
Following Gertner’s keynote, the conference featured several panels that centered around the theme of “Applied Feminism Today.” Attorneys, professors and activists shared their research on a variety of subjects, including domestic violence law, climate change, immigration and human trafficking, focusing on how feminist legal theory can be used to inform policies.