Stanley Fish on Empathy and Legal Realism

In his column today, Stanley Fish asks “What kind of judges do we want?” and decides, eventually, that we want judges with empathy, understanding, imagination, or what he calls, for no apparent reason, “hearkening to the spirit rather than the letter.” While I’m always glad to read a defense of the role of basic humanity in the art of judging, something about Fish’s column left me uneasy. I think it is this section:

“Sen. Jeff Sessions (R-Alabama) complains, ‘She [Sotomayor] seems willing to accept that a judge’s rulings may be influenced by the judge’s personal backgrounds or feelings.’ But whether this is a matter of concern depends on just what Sotomayor is imagined to be accepting. Is she accepting an account of the way human beings invariably perform? Is she endorsing a psychology? Or is she accepting a view of how judging should be done? Is she endorsing a method? Is she being descriptive or prescriptive?”

This is a remarkably pervasive distinction, but it is, I think, ultimately fallacious and useless. If you read Sotomayor’s infamous “wise Latina” speech in its entirety, it is clear that she is being descriptive and prescriptive, and that the latter follows from the former. Here’s one relevant passage:

“While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum’s aspiration, I wonder whether achieving that goal is possible in all or even in most cases.”

What do I mean that the prescriptive follows from the descriptive? Well, ask yourself, if you believe something is X, and will always be X because of human nature, does it make much sense to try to make it not-X? This is where the distinction that Fish makes in his column throws me for a loop. He seems to say that even if judges “invariably perform” a certain way, we might (legitimately) believe that “judging should be done” a different way.

Fish eventually concludes that judging shouldn’t be done that way (the formalist/originalist way), but his reason seems to be that it is undesirable, rather than impossible. But if we accept the legal realist critique, as Sotomayor appears to do, then it really doesn’t matter what is desirable or not, because it makes no sense to aspire for the impossible. And yet, in the popular discourse on judging, the truth or falsehood of the legal realist critique is never treated as a particularly interesting or relevant dispute, because people believe that they can make an “is/ought” distinction, when legal realists are not claiming only that the law is a certain way but that it inevitably has to be so. I am not trying to argue the validity of the legal realist position, not here anyway, but I cannot understand why the question posed by legal realism is not treated as more dispositive than it usually is, even among people like Fish who end up on the “empathetic” side of the dispute.