Feminism and the Language of Judging

Abstract

Richard Epstein has spoken about how the language of law and economics might inform a discussion about judging. I am going to talk about how the language of feminism might inform a conversation about judging. Thereafter, you (the audience) and our co-panelist judges will be able to assess the degree to which these two languages, which are quite different, conform to an understanding of what the activity of judging is about. I begin with a description of the conventions of judging, as currently understood in the United States—a description of what is expected from judges and of how the law talks about its aspirations for judges. It is easy to set out such a description. Judges are expected to be "impartial," "independent," "disengaged," "dispassionate." Federal statutes, constitutional interpretation, judicial canons, and state law agree: bias is forbidden. Judges may have no personal, direct, financial stakes in cases. These aspirations are, at one level, well worth celebrating; we know about the capacity for governments to attempt to intrude upon and seek to undermine judicial independence. In the United States federal courts, some 20% to 40% of civil litigation involves cases in which the United States is a party. Federal judges therefore often sit in judgment of their employer, the United States, the very entity that gives them the jurisdiction from which to speak at all. We hope that our judges will have the willingness to "speak truth to power," to judge their governments. So we talk about independence in part because of a fear that sovereigns will attempt to still or alter the voices of judges.