In 2004, The New York Times reported that numerous captured Iraqi military officers had been beaten by American interrogators, and that Major General Abed Hamed Mowhoush had been killed by suffocation. The Times has also published the stories of the so-called “ice man” of Abu Ghraib, Manadel al-Jamadi, who was beaten and killed while in U.S. custody, his body wrapped in ice to hide evidence of the beatings; of Walid bin Attash, forced to stand on his one leg (he lost the other fighting in Afghanistan) with his hands shackled above his head for two weeks; and of Gul Rahman, who died of hypothermia after being left naked from the waist down in a cold cell in a secret CIA prison outside Kabul. And the paper has documented the fate of Abu Zubaydah, captured in Pakistan, questioned in black sites and waterboarded at least 83 times, before being brought to Guantanamo, as well as the story of Khalid Shaikh Mohammed, waterboarded 183 times.
What was missing from these stories, published in the newspaper of record? A simple word: torture.
The omission is standard practice at the Times, just as it is at The Washington Post, NPR, and most U.S.-based media. Clark Hoyt, formerly ombudsman at the Times, defended the refusal to use the word torture and the decision to employ the language of “enhanced interrogation techniques,” a euphemism pioneered by the Bush Administration and embraced by the Obama Administration. For Hoyt, whether banging someone’s head against stone walls to elicit information is torture is in the eye of the beholder: “This president and this attorney general say waterboarding is torture, but the previous president and attorney general said it is not. On what basis should a newspaper render its own verdict, short of charges being filed or a legal judgment rendered?” Alicia C. Shepard, ombudsman at NPR, calls torture “loaded language.” To name simulated suffocation torture means to “unilaterally make such a judgment,” something Andrew Alexander, ombudsman at The Washington Post, argues journalists must avoid. In short, since the definition of torture is a matter of debate, we can’t publicly speak of torture. To judge an act to be torture is beyond our capacity and outside our jurisdiction.
Judgment is in short supply, and not just in the media. President Obama has made it clear that he has no interest in prosecuting and determining the responsibility of the torturers. As he said in April 2009, “This is a time for reflection, not retribution.” “Nothing,” he said, “will be gained by spending our time and energy laying blame for the past.” And so, seven years after the first death by torture in the war on terror, six years after the photos from Abu Ghraib, two years after Vice President Dick Cheney admitted that he personally authorized waterboarding and other techniques of torture, and two years after Barack Obama was elected, the vast majority of those who conceived, justified, and carried out the U.S. policy of torture—acts that are inhuman, unjust, and illegal by both international and domestic law—have not been accused, tried, or judged. Eleven low-ranking Army personnel were court-martialed after Abu Ghraib. For the murder of Major General Mowhoush, Chief Warrant Officer Lewis Welshofer Jr. was convicted of negligent homicide, but given no jail time and not even discharged from the Army. Aside from these scapegoats, the vast majority of those involved in the torture regime continue to work for the government. While Obama worries about a rush to judgment, our real problem is that we have abdicated our right and our duty to judge at all.
In spite of Obama’s call at his inauguration for a “new era of responsibility,” we are suffering a culture-wide crisis of judgment. And not just when it comes to torture. Those who employed fancy lawyers to evade taxes are offered amnesty instead of judgment if they return their money to the United States. We frequent restaurants knowing that affordable food is subsidized by underpaid illegal help in the kitchen and we pay nannies and construction workers in cash, rationalizing our violation of both the law and our moral beliefs that everyone deserves health care and other benefits. In academia, professors have so fully abandoned their duty to judge that more than 50 percent of the grades at Harvard University are in the A range. And no Wall Street firm that has received a bailout has fired its CEO.
There are few better poster children for our crisis of judgment than Ken Lewis, the CEO who drove Bank of America to insolvency. Lewis was not fired, nor has he been compelled to recoup the billions in bonuses he authorized for Merrill Lynch executives in 2008, the year Bank of America acquired the all but bankrupt Merrill Lynch. Indeed, all that “Pay Czar” Ken Feinberg demanded was that Bank of America limit the average size of bonuses in 2009 to $6.5 million. And when Lewis himself finally resigned, he left with his own $125 million golden parachute, on top of the many millions he took home while bankrupting his company during the boom years. While everyone acknowledges that “mistakes were made,” as Ronald Reagan might have put it, no one, it seems, is responsible.
The Fear of Judging
We must face our unwillingness to judge. This fear of judgment is all too recognizable—the political thinker Hannah Arendt was writing about it in the middle of the last century. In her essays and books, Arendt gave voice to what she called the “fear of passing judgment, of naming names, and of fixing blame—especially, alas, upon people in power and high position.” Reflecting upon the anger caused by her own judgment of the Judenräte—the Jewish community leaders who cooperated with the Nazis in the hopes of saving themselves, their families, and others—Arendt was struck by the fear and anger that judging others provoked. She worried about the fear of judgment underlying the uproar against Rolf Hochhuth’s play, The Deputy, which accused Pope Pius XII of silence in the face of the Holocaust. And she chafed at the outpouring of angry letters accusing scholar Hans Morgenthau of un-Christian hubris for writing an essay in The New York Times Magazine pointing out that Charles Van Doren was wrong to cheat on the quiz show “Twenty One.” In all of these instances, Arendt was struck by the “huge outcry the moment anyone fixes specific blame on some particular person instead of blaming all deeds or events on historical trends or dialectical movements.” Instead of judging the wrongdoers, the people judged those who had the temerity to judge.
At the root of our problem with judgment is the undeniable victory of relativism over truth. Judgment requires, above all, what Kant called disinterestedness and what Arendt called enlarged mentality, seeing the question from another’s point of view. While it is singular, judgment is not mere personal taste or preference. To judge is to speak the truth, a truth that must always appeal to a common sense beyond one’s own prejudices. At a time when tolerance trumps truth, judgment’s claim to the truth leaves it vulnerable to mockery and derision.
Our unwillingness to judge is also part and parcel of liberalism itself. There is, as Arendt has written, a great temptation to explain away evil and perversion by means of liberal rationalizations. Liberals are so prone to suspend judgment in the name of tolerance that they are susceptible to a values vacuum. To sympathize with the plight of the poor is unquestionably humane. But well-meaning liberal paternalism that insists the poor be hidden in shelters and offers up compassion in the form of a dehumanizing bureaucracy deprives those we are trying to help of the basic respect of being free and independent persons. To worry about our impact on our planet and expose corporate irresponsibility shows farsightedness. But to hope that politicians will solve the problem while we drive our SUVs, swim in our heated pools, and run our air conditioners reflects a profound unwillingness to judge ourselves and those around us.
The rise of social science is yet another ground for our crisis of judgment. The more that social events and personal actions are understood to be calculable, predictable, and manipulable through norms and rules identified by sociologists, economists, and political scientists, the less responsible people are for their actions. To say that someone commits a crime because he grew up poor with alcoholic parents or has a genetic predisposition to violence is to challenge the very assumption of personal responsibility that underlies judgment. If what we do, what we read, and what we buy—who we are, in other words—can be plotted on a bell curve and reduced to “science,” we trade the rarity of action for the normalcy of behavior. And the diminished responsibility of rational actors leads to an unwillingness to judge those who are clearly responsible for what they do.
Finally, the retreat from judgment is a corollary of the overwhelming belief in equality that marks the modern era. Judgment, as thinkers like Arendt and Friedrich Nietzsche remind us, presupposes pride, or what once was called the dignity of man. Only one who believes oneself right can judge another; thus judgment presupposes a certain authority and superiority. The judge must possess a feeling of distinction, what Nietzsche called a “pathos of difference,” in order to arrogate to himself or herself the right to judge. Proffering reasons for one’s judgment—the mark of rational judgment in modern times—is a sure sign of weakness, an admission that one suffers from a feeling that he or she lacks the right to judge another. Since Justice Louis Brandeis first introduced social science evidence into legal opinions, judges have sought to buttress their judgments with rationalizations and empirical support intended to lend objective and scientific authority to particular judgments. But only one who is unsure of his or her right to judge feels the need to offer statistics, studies, and rationalizations to justify that judgment. It is precisely this arrogance of the judge that is increasingly absent in our age.
From the fact of such a deeply ingrained distrust of judging, Arendt drew an essential lesson: namely, that morality in our times cannot be taken for granted. In the absence of judgment, and amidst doubt about the possibility of justice, she argued that we need to foster, support, and embolden morality.
To keep the idea of justice alive does not require curricula in ethics or a return of the catechism. Morality, as Immanuel Kant wrote in his famous footnote responding to Professor Sulzer, cannot be taught through rules in a classroom. Only by example can one be inspired to emulate moral action. Examples, as Kant saw, “are the go-cart of judgment.” Telling someone that it is wrong to torture and even providing rational arguments will rarely sway another. But decisively resisting the desire to employ torture as a means, or courageously saying no to an order to torture, will do more to inculcate a moral duty in others than any amount of ethical education. Similarly, bringing someone who has tortured to judgment will inculcate a common sense of the wrongness of torture more meaningfully than any amount of philosophizing and moralizing.
Arendt offered just such an example of judgment at the end of her book Eichmann in Jerusalem, where she argued that Eichmann must die even though he had not broken a specific law. Arendt’s judgment was stark and harsh: “Just as you supported and carried out a policy of not wanting to share the earth with the Jewish people,” she wrote, “we find that no one, that is, no member of the human race, can be expected to want to share the earth with you. This is the reason, and the only reason, you must hang.” Arendt criticized the Israeli court for basing its judgment on ex post facto laws. Eichmann needed to be judged and executed, Arendt writes, not because he was a bad person—after all, she called him a banal bureaucrat—nor because he broke laws, but because justice requires that evil acts be judged and punished. Such an act of judgment assumes the pride of knowing oneself to be right. It rejects Eichmann’s claim that where all are guilty, none are, a rationale rooted in a social scientific worldview. It refuses to say that understanding Eichmann’s normality excuses him. Rather, it announces a truth.
The importance of Arendt’s judgment of Eichmann rests on her conviction that such an act was necessary to affirm our common-sense belief in judgment itself. At a time when religion and tradition no longer buttress universal or public claims to truth, acts of judgment claim that we all must agree that this bad thing was wrong and it must be punished. It is in judgment that we singularly and together make sense of what is new, challenging, and horrible in our world.
Jury Trials and the Space of Judgment
The crisis of judgment in our time has become so pronounced that it has come to affect the one place in which it should be most at home: the law. Consider the paradigmatic space of judgment, the trial, which focuses attention on a person and his act. It is in a courtroom that the fear of judgment can no longer hide behind the obfuscations of systemic blame, bureaucratic irresponsibility, and a discomfort with judging. In mass society, where we too easily imagine ourselves and others to be mere cogs in a machine that is beyond personal control, the trial resists what Arendt calls the “almost automatic shifting of responsibility that habitually takes place in modern society.” In a courtroom, the question is: Did Ken Lewis defraud his shareholders? Did Dick Cheney authorize torture?
The trial, and specifically the jury trial, is, as Alexis de Tocqueville understood, one essential incubator of democracy. The jury trial is the only space in which most people will ever be forced to sit in judgment of their fellow citizens and declare them innocent or guilty; or, in a civil trial, to judge whether one party’s wrong requires compensation. The experience of being a juror, Tocqueville saw, inculcates in all citizens the habits of mind of the judge; it “spreads to all classes respect for the thing judged and the idea of right.” Juries, he wrote, are “one of the most efficacious means society can make use of for the education of the people.”
If the experience of sitting in judgment as a juror is a bulwark of our democratic freedoms, we should be worried. In spite of the Sixth Amendment guarantee of a right to a jury trial in criminal cases and the Seventh Amendment right to a trial in civil cases, jury trials are increasingly rare. The meteoric rise of plea bargaining is one factor behind the fact that only 4.3 percent of federal criminal cases are decided by the judgment of a jury. In civil law, experts have come to question the ability of jurors to judge correctly and thus have removed all kinds of complicated trials from the judgment of a jury. Today, only 1.2 percent of federal civil cases culminate in a jury trial.
Many cases never even yield a judgment of any kind, but replace judgments with “agreements.” Thus Toyota recently agreed to pay a $16.4 million fine—the maximum allowed by law—for failing to notify the government about a problem with sticky accelerators in its cars. In the agreement, Toyota “denied all wrongdoing.” As long as they pay, we forfeit the right to judge them.
And even when a case does come before a jury, tort-reform laws frequently make jury judgments meaningless as federal judges typically throw out or radically reduce the punitive judgments made by jurors. The jury in the Exxon Valdez oil spill case awarded the plaintiffs $287 million in damages and $5 billion in punitive damages; on appeal, that latter amount was first reduced to $4 billion, then to $2.5 billion, and ultimately, after the Supreme Court invalidated that award, to $507.5 million, which was finally given in 2008—19 years after the catastrophic oil spill. Formed long before the first supertanker plied the seas, the traditional rules of maritime law, the Supreme Court reasoned, limit liability for accidents at sea and trump the judgment of a jury as to the proper punishment for Exxon.
It is a paradox that judgment by jury is both so revered and feared in the modern age. Just this year, England, which enshrined trials by jury in the Magna Carta in 1215, held its first criminal trial without a jury since the abolition of the notorious Star Chamber in 1641. Civil jury trials in England are largely a remnant of history. And in the United States, while federal trial judges continue to profess great faith in American juries, they express deep contempt for jury verdicts. In one survey from 2001, more than 30 percent of Texas trial judges and 27 percent of federal judges thought juries should decide fewer cases, and 27 percent of federal trial judges thought the right to jury trials should be reduced or eliminated.
Judges Shouldn’t Judge
If judges and legal experts worry about the capacity of laypeople who serve on juries to understand complicated disputes, the distrust is mutual. As much as our legal establishment fears the judgment of juries, equally do our politicians and citizens scorn the judgment of judges.
Consider one of the most powerful and least understood movements in modern legal culture: the push for sentencing guidelines in criminal law. The essential aim of sentencing guidelines is to replace what critics label the discretionary and unchecked judgment by judges with a more consistent, fair, and scientific system. The goal, in other words, is to take away the judge’s traditional power to sentence a convicted criminal and replace that judicial power with standards, rules, charts, and numerical calculations.
The movement for sentencing reform began in earnest with Marvin Frankel’s 1973 book, Criminal Sentences: Law Without Order. Frankel told the story of two prisoners. One was convicted of cashing kited checks for $58.40. He was out of work and needed the money for food and rent. He had no prior record. The other cashed a check for $35.20. Also out of work, he was of similar race and background and had one prior conviction on an alcohol-related charge. Sentenced by different judges, the first man received a 15-year prison term. The second received 30 days. One response to such a divergence would be to say that one of these judges judged badly. But that was not Frankel’s conclusion. Frankel did not blame the judges (another ironic example of the pervasive unwillingness to judge).
Instead, Frankel—U.S. district court judge, Columbia law professor, and founder of the Lawyers Committee for Human Rights—argued that the judges were the victims of a broken system that left them without guidance. In Frankel’s influential telling, the divergent sentences were evidence that we cannot trust judges to judge well and that a system that depends on judicial judgment is incompatible with justice. What was needed, he argued, was a legislatively approved system of consistent and scientific guidelines for sentencing.
Frankel’s call for reform was trumpeted by liberals as well as conservatives. For liberals, the failure of judges was evident in the sterner penalties often meted out by white judges to African-American defendants or for crimes with white victims. For conservatives, the failure was clear in the tendency of soft-hearted judges to cite mitigating circumstances such as poverty, poor upbringing, and genetic predispositions to reduce punishments. What both liberals and conservatives agreed upon was that there existed a crisis in judgment according to which similarly situated criminals were receiving radically divergent sentences.
Nearly every state in the nation has passed some version of sentencing reform. The bipartisan Sentencing Reform Act of 1984 was sponsored and spearheaded by Ted Kennedy in close collaboration with Strom Thurmond. The bill was signed with great fanfare by Ronald Reagan. Judges, opined one of President Reagan’s advisors, “while trained in the law,” possess “no special competence in imposing a sentence that will reflect society’s values.” The mantra of sentencing reform’s proponents was simple: The judges have failed.
Sentencing reform was, as Justice John Paul Stevens has written, a bipartisan attack on the power of judges. Whereas previously judges had unlimited authority to sentence criminals to the punishment they deserved, now every punishment began with a base number. That number could be raised or lowered based on specific sentencing factors—the number of prior convictions, the use of a gun, or the existence of racial animus. The judge’s job was to consult a chart, add together some numbers, and thus determine a range within which the sentence could fall. Some of these sentencing schemes set up mandatory guidelines for judges to follow. Others made the guidelines advisory. And alongside the guidelines exist hundreds of state and federal laws that mandate minimum sentences for particular crimes. What all the various state and federal sentencing reforms share is a distrust of judicial judgment and the desire to limit judicial authority.
In the 2005 case United States v. Booker, the Supreme Court invalidated the part of the federal Sentencing Reform Act that permitted judges to increase the numerical score for a sentence. In two weirdly discordant majority opinions—one by Stevens and the other by Justice Stephen Breyer—the Court first rejected the act’s granting of judges the right to use their judgment to find factors that would elevate a sentence; the Court then declared that the mandatory element of the sentencing guidelines was unconstitutional, while still holding that the minimum and maximum guidelines could continue so long as they were voluntary. The opinion had no effect on the mandatory minimum sentence laws on the state or the federal level. After Booker, judges must still calculate the numerical offense level and offer justifications for any departures; all sentences, even those within the guidelines, remain subject to appellate review. Federal sentencing law in the United States is largely thought to be in a period of flux and in need of further congressional action. It is likely that the power of judges to adjudge a criminal to a particular punishment tailored to the person and situation will remain a distant memory.
Judges Who Hate Justice
The troubling decline of judgments by juries and judges has its analogue in the abdication of judgment on the Supreme Court as well. David Souter, newly retired from the Court, lamented the loss of judgment in legal culture in a speech at Harvard University’s 2010 commencement. Souter took aim at what he saw as a fear of judgment amongst his former colleagues. According to Souter, his brethren—the highest judges in the land—have fallen prey to the same fear of judging that has infected the wider culture. The movements to ground judgments in an “original intent,” in “bright line rules,” and in invocations of stare decisis—indeed, the now bipartisan opposition to judicial judgment of any sort—are born of a denial of the very essence of being a judge.
Judging—and it is symptomatic of our adjudicatively timorous age that one needs to make so remedial a statement as the following—demands making difficult judgments. As Souter said:
A choice may have to be made, not because language is vague, but because the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well. These paired desires of ours can clash, and when they do a court is forced to choose between them, between one constitutional good and another one. The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice.
Souter’s plea that judges and Supreme Court justices cultivate the courage to make judgments is a clear response to the judicial philosophies that dominate the Court. For Justice Antonin Scalia, justice demands, above all, clear and simple rules that guarantee predictability. In his article “The Rule of Law as a Law of Rules,” Scalia writes that clear and simple laws are useful for judges, whose main responsibility is to courageously defend civil liberties against the passions of democratic majorities. “The chances that frail men and women will stand up to their unpleasant duty,” Scalia writes, “are greatly increased if they can stand behind the solid shield of a firm, clear principle enunciated in earlier cases.” Because it is unlikely that judges will do their job and judge, we need to transform them into automatons trained in applying clear and simple rules to cases.
A second target of Souter’s plea for judgment is Chief Justice John Roberts, who has made it his priority to seek unanimous or near-unanimous opinions. Unanimity, Roberts argues, serves the rule of law by ensuring that the Court’s message is not confused by its own internal divisions. The rules need to be clear because, as Roberts said during his confirmation hearings, “Judges are like umpires.”
There may be no more paradigmatic case illustrating Chief Justice Roberts’s judgment-phobic and rule-bound ideal of the judge as “umpire” than the case of Leonel Torres Herrera. Convicted of a double murder by a Texas jury in 1982, Herrera was sentenced to death. After appealing without success, Herrera filed a federal writ of habeas corpus, claiming that procedural errors should invalidate his verdict. His petition was denied. Then in 1992, shortly before Herrera was to be executed, a new witness came forward with evidence that, if true, would have exonerated Herrera. Herrera filed a new writ of habeas corpus arguing that the new evidence of his innocence should, at the very least, require a new trial to determine his guilt. The Supreme Court denied his petition, and Herrera was executed.
Roberts was, at the time, the deputy solicitor general under President George H.W. Bush, and co-authored the government’s brief in the case of Herrera v. Collins. The brief reads, “Does the Constitution require the prisoner have the right to seek judicial review of a claim of newly discovered evidence instead of being required to seek relief in the clemency process? In our view, the Constitution does not guarantee the prisoner such a right.” While Roberts clearly does not wish to see innocents executed, his idea of fidelity to law means that law, absent a specific legal rule, is powerless to prevent or even delay the legal execution of a potentially innocent man. The law, as Roberts understands it, is a system of rules that has no necessary connection to justice beyond the rules.
Roberts’s view of the law as a system of rules is mainstream in American jurisprudence. The intellectual forefather of the rule-bound mode of judging is Justice Oliver Wendell Holmes Jr., whom Roberts has called a model for his own philosophy. Holmes was fond of saying: “I hate justice.” Speaking of justice to Judge Learned Hand, Holmes said: “That is not my job. My job is to play the game according to the rules.” For Roberts, as for Justice Holmes, fidelity to law means fidelity to a system of rules—and nothing more.
Whether or not Justice Roberts “hate[s] justice,” he appears to see law as a game in which the rules are to be enforced in a dispassionate and technical manner. Thus contemporary tort law holds that if spilling oil into a stream carries a penalty that a company is willing to pay, then the company can spill its oil, pay its fine, and go on with its business. This view presupposes that the primary goal of law is the orderly and efficient resolution of disputes, even at the risk of doing injustice. In such a game, the unruly and singular act of judgment cedes the field to the orderly and certain march of rules.
Why Must We Judge?
We so fear judgment today that we banish it from public life. We even banish it from law. Why? Because judgment is unruly, singular, and unpredictable. It is personal instead of objective and grounded in prejudices at the expense of rationality. It asserts a truth amidst skepticism about truth. It thus rejects the liberal values of relativism, equality, and scientific objectivity that define our time. In other words, judgment accomplishes little and costs much.
Liberalism, however, need not be opposed to judgment. The liberal impulse behind the tolerance of others is grounded upon a demand for justice—the determination to give to each his own and to judge all people as they themselves deserve to be judged. The liberal celebration of just judgment is what undergirded the liberal insistence that slavery was a moral wrong. And it is liberals who worked to create a system of international law, international criminal courts, and international tribunals that brought war criminals, sovereign tyrants, and corporate malefactors to justice.
At the same time, liberals cried foul over President George W. Bush’s description of Saddam Hussein as evil personified. The intelligentsia immediately condemned the simplicity of a worldview that would dare to divide the world into good and evil. His black-and-white approach, liberal critics held, missed the nuance in moral judgment. To judge Saddam because he had murdered his fellow Iraqis en masse was thought to be vulgar, not to mention hypocritical. Such clear judgments of Saddam—like the anti-immigrant judgments of many in the Tea Party today—were derided as coarse and unsophisticated. There is, of course, much to criticize in President Bush’s decision to label Saddam evil. Similarly, there is much to reject in the Tea Party’s demonizing of immigrants. One can wonder at the selective prosecution of this tyrant over that one and one can question the attacks on illegal immigrants rather than the corporations that employ them and the consumers who benefit from them. To judge the Iraq War morally wrong, and to judge the harassment of suspected illegal immigrants unconstitutional, reflects a sound mind. However, to condemn the characterization of an autocratic and cynical despot who gasses his own citizens as evil, and to refuse to see that those who enter this country illegally undermine our system of taxation, reduce the wages for working Americans, and contribute to a culture of corruption and lawlessness, is something else.
The importance of judgment lies not in its utility. To convict Vice President Dick Cheney of illegal torture, to disbar John Yoo, to impeach Jay Bybee, to prosecute BP CEO Tony Hayward, and to strip Wall Street executives of taxpayer-financed bonuses, will not prevent future crimes against humanity, financial crises, or environmental disasters.
Nor is judgment popular. A comfortable 60 percent of Americans oppose prosecution of those who tortured in our name. Strong majorities also opposed the impeachment of President Bill Clinton, despite his perjury and apparent sexual harassment. And New York Governor Eliot Spitzer, who at least had the rectitude to resign in the wake of his scandalous affairs with call girls, has been welcomed back into his role as a moral arbiter on CNN. Disgraced Wall Street titans rebounded quickly—like Stanley O’Neal, who, despite steering Merrill Lynch into $8 billion of losses from subprime loans, walked away with a $161 million dollar severance package, and then promptly got named to the boards of directors of Alcoa and American Beacon Advisors. In a practical age, it is much easier to move on and be productive rather than occupy oneself with the sins and crimes of the past.
Are the people right to move on? Are business leaders right to hire those who have earned hundreds of millions while destroying their companies? Are viewers right to turn to disgraced politicians as political pundits? Is President Obama right to stand above the fray and move on? What, we need to ask, does judgment offer?
Judgment offers the example of justice. In the act of judging, one does justice. Instead of moving on, negotiating a settlement, playing by the rules, or balancing interests, judgments enact justice in a way that is irreducible to rules or norms. The act of judgment, in other words, offers itself as an act of justice.
As rare as it is today, judgment is essential for the sake of preserving examples of justice in our world. For the sake of a world ennobled by the spirit of justice, we need to nurture the boldness of those who will judge. Executives who bankrupt their companies must be fired and stripped of their retirement bonuses, not simply asked to resign. And when crimes have been committed, the wrongdoers must appear before a jury of their peers. Dick Cheney is all but begging to be put on trial because he is convinced he acted rightly. To put him on trial is to force the question. Either a jury of his peers will affirm the illegality and immorality of torture, or that jury will judge that our government was right to bend the rules in the name of security. We don’t know the verdict in advance, since judgments are risky—another reason we fear them in our risk-averse age.
If Cheney, Yoo, Bybee, and company are exonerated, we will have to embark on a national conversation about our deepest values and our humanity. But whatever the decision, we will escape this twilight zone of moral indecision in which we mouth platitudes about the wrongness of torture even as we charge our young men and women to turn the screws. To force a judgment may reveal ourselves as other than some wish us to be. Yet it is only through exemplary acts of judgment that we can reenergize and reconstitute our moral world.
What judging serves cannot be measured, quantified, or rationalized. Since it disdains explanation and justification, judgment partakes of the divine. To judge justly is both the most human and also superhuman of acts, which is why tales of justice are a feature of our most enduring myths, from Solomon to Agamemnon.
No one asked Agamemnon why or how he judged. When Paris stole Helen, the Greeks could have been excused for advising Menelaus to move on. But King Agamemnon assembled his fleet, sacrificed his daughter Iphigenia to the cause of justice, and sailed to execute his judgment.
As Aeschylus tells in the Oresteia, Agamemnon returned from Troy and was killed by his wife Clytemnestra. Orestes might well have tolerated his mother’s passionate vengeance for the death of her daughter. But Orestes judged otherwise.
And when the Furies hounded Orestes and demanded blood for blood as a result of his matricide, Athena could have acquiesced to the ancient goddesses and their unbending law of retribution. She did not. In casting the deciding ballot for Orestes, Athena in no sense refuses judgment; on the contrary, knowing that both the Furies and Orestes had right on their sides, she gives something to each. Orestes is cleansed through his suffering and the Furies are granted permanent status in the law courts of Athens. Athena’s judgment thus enshrines the wisdom of Rhadamanthus, the judge of the dead: “Suffer what you have done.”
We have lost the wisdom of Rhadamanthus. Instead of judging, we reckon and negotiate. Judgments like those of Athena, Orestes, and Agamemnon discriminate. They assert a truth. They address particular persons and singular events and risk saying: This person is guilty, this one is innocent. Such judgments are often unreasoned, but this makes them neither irrational nor thoughtless. They are often intolerant and unfair, but this makes them neither racist nor unjust. Amidst the unquestioned hatred of all discrimination, we have forgotten that discrimination, the art of making relevant distinctions, is actually the root of judging. In our passion for rationality and fairness, we sacrifice judgment, and with judgment, we abandon our sense of justice.
What acts of judgment offer are an ideal of justice beyond the law. Plato called it the idea of the good. Kant named it the categorical imperative. Arendt thought that judgment appealed to common sense, “that sense which fits us into a community with others.” What all three understood is that if morality and a life lived together with others is to persist, we need judgments that would invoke and actualize that common moral sense, that would keep alive the sense of justice.Berkowitz.pdf