I have been in the trenches, too long. II have been representing employees in their struggle for justice and vindication, too long. After all these years, I tend to look at judges in terms of how they will look at employment lawsuits. I should be more balanced, but have to admit that I am not. President Obama is looking at several possible nominees, based, he said, on how well they empathize with working people.
That is music to my ears. I have seen way too many cases decoded on appeal by judges who have never had to meet a payroll, never had to struggle with a minimum wage job, and never had to dig a ditch. Way back when, I worked my way through college digging ditches, cooking hamburgers, and waiting on tables. I did what I had to do. My former supervisor at my ditch job, asked me once, "will you remember us when you get to be a lawyer?" He meant will I remember the working people when, in his mind, I become rich and successful? Well, I am not rich, but I hope I do remember my roots. Too many appellate judges (who decide an awful lot of cases) have never done any of this sort of work, have never known people intimately who have dug a ditch.
Struggling by itself does not make a good judge. But, it does lend perspective. As a country, we know this already. That is why for decades, there was a "Jewish" seat on the Supreme court, a "Catholic" seat and now, one might argue, a "female" seat and an "Africa-American" seat. As a country, we know that people who are not female will not understand fully the issues of women. We know that Caucasians will not fully appreciate African-American issues. Having represented many people who had real jobs in the real world, I believe that judges who never worked during college or law school, who went from law school to big law firm and then to a judgeship, just cannot fully appreciate the issues of people who had "real" jobs.
How else do you explain a decision in which a black man is referred to as boy on several occasions, yet the Fifth Circuit Court of Appeals finds this does not equate to hostile work environment? The life experiences of a judge do matter.