Judging is an Unnatural Act

KEYNOTE ADDRESS

Columbus, Ohio, Franklin County Republican Party Judicial Salute

August 15, 2018

Ohio Auditor of State Dave Yost

My wife recently asked me how I felt about the campaign.

“Well, honey…I’m pretty much living out of my car. I bother people I’ve only just met to give me money. I didn’t know this was going to be such great training to be a homeless guy!”

You could well say that campaigning is an unnatural act. No one would undertake this grueling task by instinct, or without a greater end in mind. And that brings me to why we’re all here today.

Each day that you put on the robe, each time you take your seat at the bench, and each time you call your courtroom to order, you commit an unnatural act.

Yup, I’m saying that being a judge is an unnatural act. Don’t worry, it’s not illegal, just very, VERY unnatural.

In fact, without this unnatural act, we wouldn’t have a legal system, at least, not one that could be counted on to dispense justice.

Here’s what I mean: God made human beings with big brains. And I’m not sure He did us any favors by doing so. Because those big brains never sit still. They’ve always got to be thinking, absorbing information, figuring things out, wondering about stuff.

The brain is designed to try to make sense of the world, to achieve certainty about things. And when it doesn’t have enough data, it fills in the blanks with its own theories.

This can be a good thing when it leads to new insights and explanations. It’s where innovation and scientific progress comes from.

But it also can be a bad thing when it leaps to conclusions based on no evidence. It’s why the law has rules of evidence—and Facebook does not.

It’s a natural thing to fill in the blanks, to try to resolve things in a way we can understand. It’s not natural to reserve judgment, to keep listening when we think we already understand.

The facts are one thing.  They get complicated by bias and self-interest.

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There was a case of a judge who said to a witness, “Do you understand that you have sworn to tell the truth?”

“I do,” the witness said.

And the judge sternly inquired, “Do you understand what will happen if you are not truthful?”

“Sure,” said the witness, “my side will win.”

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Self-interest is everywhere, and it colors our judgment.

Unfortunately, humans often are working with too little data or unreliable data. Or they’ve inherited a boatload of wrong ideas, or politics, or so-called conventional wisdom from their parents and society—ideas that they substitute for actual facts.

Perhaps this is the root cause of why our society tends to be overweight…we get all of our exercise from jumping to conclusions, making leaps of logic, rushing to judgment.

As I said, it’s the natural human condition.

In fact, with the rise of social media over the past 20 years or so, it’s gotten a lot worse. Social media is like crack for hasty conclusions, bias and falsehood. Give somebody half a fact, or heck, half a falsehood, and in the blink of an eye they’ll post a slur, a conspiracy theory or an accusation that a million or 10 million or 20 million people see moments later. And at least some of those who see it will believe it and pass it along.

You’ve all heard the famous quote from Mark Twain, long before the internet: “A lie can get halfway around the world before the truth can get its boots on.”

And by the way, that Twain quote might not be a fact. If Twain ever said it—the evidence is inconclusive—he borrowed it from the great satirist Jonathan Swift, who wrote a version of that saying way back in 1710—125 years before Twain was even born.

Recently we’ve seen a good example of the way social media magnifies the natural human tendency to leap to conclusions and to let bias direct belief right here in Columbus.

I’m talking about the controversy arising over the firing of OSU assistant coach Zach Smith and the suspension of head coach Urban Meyer over who did what and when in a case of alleged domestic abuse.

Almost instantly, the world divided into those for Meyer and those against him. Facebook and Twitter exploded with the great Urban Meyer debate.

Working from the same set of facts—that is, virtually none—thousands, perhaps tens of thousands, of people weighed in with verdicts of guilt or innocence. They built elaborate cases relying on suppositions, assumptions, extrapolations and hearsay. And plenty of personal animus.  It’s the natural human condition.

Well, good luck to the investigative panel trying to sort out that situation. But it’s the kind of thing that might one day land in one of your courtrooms—and you don’t have the option of filling in the blanks, of bias, of even accepting every statement at face value, of rushing to judgment.

Justice requires you to do something that is quite unnatural: Be impartial. Withhold judgment. Follow the facts and evidence where they lead…not where we or others would like them to go.

But today, there is a school of thought gaining prominence in the other political party: that the law does not guide the judge, but that they judge should guide the law.

And there is a corollary for attorneys general: that the AG does not enforce the law, but uses litigation to make the law.

As Republicans we dissent!

Folks, the police officer who writes the ticket does NOT get to decide what the speed limit is—and doesn’t get to add or subtract numerals from the speed limit sign.

If the judge shapes the law, no one is properly on notice as to what conduct is expected or prohibited, and the party who does not prevail in court will never believe the case was fairly heard.

If the judge shapes the law, the elected representatives of the people are reduced to the opinion of one…a politician who sits disguised in the black robe of impartiality.

Those judges who suppose that it is their duty to shape the law often seem to want to bend it into a shape that is pleasing to the mob, using the subtle, powerful tools of our profession to justify the mob’s demands. When that occurs, the judge no longer serves any public purpose—he or she has become nothing more than a spokesman for the mob.

We may as well get rid of the middleman—and the sophistry—and go directly to mob rule.

Ladies and gentlemen, this must not be!

It’s why judges matter, and who those judges are. It’s why elections matter…why THIS election matters.

The men and women in this room who cloak their own personal preferences with the black robe of judicial objectivity understand this in their bones. It’s why we are here today to salute them.

I began by saying that judging is an unnatural act. The last thing I want to say is: Please don’t stop.

Thank you.