I know I'm probably a little behind the times on this one, but I saw in today's Philly Inquirer that Jeff Sessions is poised to give a speech decrying the use of "personal feelings" in judging. Because I am spending my summer studying both the psychology and neuroscience of how people make decisions, I thought I'd weigh in on this. I know others have weighed in on how the whole personal feelings thing is code for judicial activism, is a masked way of criticizing Judge Sotomayor's gender, etc, and I certainly do see that. But, in this post, I have a somewhat different take.
So, here's the deal: saying that judges should make decisions without regard to personal feelings is the scientific equivalent of arguing that the world is flat. It is scientific crazy talk. Your emotional brain, your personal experiences, your feelings, are an absolutely essential part of decision-making. For every homo sapiens: male, female, Justice Scalia, Justice Thomas and everybody else. In the book How We Decide, by Jonah Lehrer (reviewed here in the NY Times), Lehrer exhuastively reviews the science of human decision-making and couldn't be clearer: the assumption that logic and rationality are the sine qua non of decision-making is simply wrong. It isn't how the brain works. Indeed, when scientists observed patients who had serious damage to the parts of the brain controlling emotions, they were surprised to note that these people were utterly incapable of making decisions. These people had perfect cognitive functioning -- they just had no ability to feel emotion. But their perfect cognition and rationality could not help them. They were paralyzed by the smallest decisions -- when to make a doctor's appointment, what to eat for dinner. A brain that can't feel cannot decide, period.
If you haven't seen Lehrer's book, I highly recommend it. I read it in 3 days and talked about it to any sentient being that would listen (apparently still doing so). I don't want to clog up the Faculty Lounge with all the other fascinating evidence that Lehrer supplies, over the course of hundreds of pages, for the connection between emotion and decision-making (indeed, the connection between emotion and good decision-making). But something snapped in me today when I read about Sessions. If the GOP wants to continue to be the party that ignores science, criticizing Judge Sotomayor for using "feelings" in decision-making is the way to go. But I hope that someday we -- and by we I mean lawyers in particular -- can leave behind this incorrect but steadfast suspicion we seem to have about the role of emotion in deciding.
Professor Charlie Geyh here at IU did a conference recently on judicial decision-making and the discussions were fascinating. The podcasts were just put up at: http://www.law.indiana.edu/front/special/20090327_judicial/
Posted by: Archana | June 18, 2009 at 08:37 PM