Jeremy Fogel There have been judges in every civilization that I know of, they’re always called judges, but I mean, they could be elders or they could be wise people, but there’s a role for this kind of person. And there is, I think what you hope for from that kind of person is, you want equanimity, you want wisdom, you want an ability to hear people, to be receptive and empathetic and compassionate.
When people talk about justice, I think they’re implicitly usually kind of looking for those kinds of qualities. I think there’s hope there because I think there is a strong residue of good will in people, no matter how dark the times get people want to be their best selves and do good things. And I think a lot of judges aspire for a thad.
And so that does make me hopeful. You know, and there’s a whole side that doesn’t make me hopeful. There’s a whole side that I worry about and it’ll just kind of become mechanical and judges will become, you know, agents of repressive governments and all that kind of thing. So you just sort of have to hope that positive aspirational stuff is strong enough in enough people. And I’ve always believed that because that’s kind of been the reason why I’ve lived the life that I have.
Dacher Keltner He was nominated by President Clinton in 1998 to sit on the United States District Court for the Northern district of California, which he did for 13 years. Then two years ago, Judge Jeremy Fogel retired from the bench and began a new career running the Berkeley Judicial Institute here at UC Berkeley.
He’s also at the forefront of a movement to bring mindfulness practices into the work of judges. And that’s just the short list of the amazing things he has accomplished in his career.
I’m Dacher Keltner. Thanks for joining me on the Science of Happiness.
Today Jeremy is joining us to discuss how practicing mindfulness can make a good judge and help all of us be better decision makers. Jeremy, thanks for being in conversation.
Jeremy Fogel Sure.
Dacher Keltner You know, with this incredible career as a federal judge and in law, did you always want to be a judge when you were a kid?
Jeremy Fogel No. No. In fact, even being a lawyer was not really on my screen. And then this was during, uh, the late sixties in the early seventies and the Vietnam war was going on, there was a lot of social unrest and so law school seemed like it would be a fit for my passion about social justice and so that’s what attracted me to going to law school. And, I had a relatively short law practice. I actually was only a lawyer for seven years and most of that time I was representing pretty vulnerable people. They were people with chronic mental illnesses and mental impairments that made it very difficult for them to communicate or get any kind of services or really any kind of respect socially.
And in the course of representing them and going to court with them, I had interactions with a lot of judges. And one of the things that I came to believe was that a lot of judges really did not have a lot of ability to deal with vulnerable people very well, you know, that they were not respectful, hey were not good listeners, they were not compassionate. And somewhere in that process, I said, you know, that’s something I think I could probably do pretty well. You know, I usually tend to see both sides of an issue. Like, you know, I’d like to do that job and I’d like to do that job differently from the way I’m seeing it done. And at the same time, one of the things I did not like particularly about being a lawyer was that you, from an ethical standpoint, you have to represent one side of a case. And a lot of cases have more than one side. You know, they they’re they’re, they’re they’re, um, you know, they’re problems. I mean, there’s problems between and among people. And I was always seeing the other side of the case as well as my own.
And, and. Not great if you’re trying to be very,
Dacher Keltner A little too reasonable to reasonable.
Jeremy Fogel So I think it was kind of in there that I really thought about being some kind of neutral, I thought about either being a professional mediator or being the judge.
Dacher Keltner And what got you to mindfulness or meditation?
Jeremy Fogel Well, that came later, but I mean, I never really pursued meditation.
I mean, I was pursuing a career and I was young and I was, I had kids and all this. And actually what happened was that after I’d been a judge now for 15 years, I guess, right around the time I got nominated for the federal court, which was a pretty stressful thing, because at that time, the president’s nominees were not getting a very easy time and the Senate and I was really feeling pretty stressed out by that.
And, my wife actually suggested that we go to a, an MBSR class.
Dacher Keltner And a quick pause for our listeners here. MBSR refers to mindfulness based stress reduction. It’s an eight week course that has been shown to help people deal with stress and pain.
Jeremy Fogel We did the eight-week MBSR training and really liked it. You know, it was really helpful, you know, being able to just stop and pay attention to where we were. An,d I kind of noticed an immediate difference in my life. And so I did more of it. You know, MBSR has guided and it’s pretty structured. And at some point I stopped needing that I stopped needing the structure. I just kind of got more into that into a Zen sort of place where I just liked breathing and just letting myself be.
And I also noticed that as I did that more and more that the spiritual element of meditation really started to assert itself.
Dacher Keltner How would you describe that?
Jeremy Fogel Well, it’s just that I just became more aware of it. As more space got cleared out inside of me, I felt a great deal of equanimity. Uh, I think that’s probably the greatest thing I’ve gotten from meditation. And part of the equanimity is just this sense of spiritual connection. It became more and more part of my daily being. And I think that’s when I really started to believe, hey, this is really transformative. It’s just made me so much more myself.
Dacher Keltner You know, just talking to judges and how complicated the hours are of their day of integrating information, just the complexity of the cases they face of child custody or taking a dad away from his kids, et cetera. How did this practice, this contemplative practice change how you judge?
Jeremy Fogel Well, I think the great virtue of these practices is that you slow down, you see things in the job. You know, and particularly in some of the places that you just mentioned, I mean, like in family court, or if you’re doing heavy criminal where you, you see people who do really bad things to other people, that has an emotional impact on you, you know, it stimulates your visceral responses, and then that in turn kind of makes your judgment less accurate and you just don’t have the space. I mean, you’re living more in your emotions.
And so, what I came to believe and what I believe very much now is that mindfulness practice gives you more of an ability to regulate your emotions, to notice what’s happening to be present, think about each situation you’re facing as a unique situation.
And I think those are incredibly useful skills for judges to have, and you can learn the law and you can learn all the procedure and everything else, but you still have to be able to bring yourself to the task and be present in it, and I think it’s just hard for people to do that. And so, I think in three areas where meditation and mindfulness practice can help judges, I mean, for one thing, it can help you get through the sort of the repetitive nature of the day. All of the things you see over and over again, and to be able to deal with each of those situations as a new situation. And it also sort of allows you to be present in the situation and then the other people in the situation feel that. They feel your presence and, you know, they can tell that you’re there. You know, they can tell that you’re listening. You know, it may be the 10 thousands guilty plea you’ve taken, but it may be the first guilty plea this defendant has ever entered. So that’s one thing.
And then all of the implicit assumptions, the implicit biases that people have, you know, I mean, judges being fair is what being a judge is about, mean it’s sort of a Cardinal virtue, you know, I think, I actually think judges try very hard to be fair, but you don’t know what you don’t know. You don’t know where your unconscious assumptions are.
And then the third part is the, just the self-care part of it, that it’s a job that stirs up your emotions all the time, and, you know, the, the norm for the job is you don’t get all emotional. You don’t yell at litigants. You know, you don’t cry on the bench.
I mean, there’s this, all these things you’re not supposed to do. And so what ends up happening for most judges is they just stuff it all down and then it ends up being, you know, the, it shows up in physical health problems or substance abuse or whatever.
Dacher Keltner I mean, it’s so fascinating how this aligns with what we know about the neuroscience of mindfulness. It gets your prefrontal cortex system to more involved in handling stress and opens your mind up to thinking about alternatives. You know, you’re pushing these pretty rad, not radical, but you know, unusual ideas I would imagine for the judiciary, which is emotion, regulation, and stress and mindfulness.
How’s that going?
Jeremy Fogel You know, it’s been a work in progress. Um, I always have tried and in talking about this to get away from the tendency of people, to stereotype it as some sort of new age-y thing, there’s a reason why it’s practiced all over the world. And there’s a reason why there’s a common language and a lot of common practice, actually there’s specific ways it can apply in your life.
As a judge and you can do judging better. Yeah. And I think people really like that. I mean the performance related aspects of it because, you know, most judges are strivers in that sense. And I think if they can see where it will help them make better decisions or, or, you know, be able to manage difficult situations better, or even deal with implicit assumptions better than they’re more receptive to it.
Dacher Keltner Are you seeing that work influencing the judicial system?
Jeremy Fogel I am, I think part of it is that, you know, I started getting. A lot of invitations from judicial organizations to come talk to them. I mean, I’m doing a program next week for one of the state judiciaries about this. It’s, as people are going through very stressful times, I think there’s more and more of a realization that you need judges feel like they need help.
You know, they have, they have very stressful jobs and just talking about how stressful their jobs are isn’t enough. The jobs continue to be stressful. And in fact, they’re getting more stressful for a lot of reasons. And so, when I was still back on the state court and we would do programs, not about mindfulness, but just about self-awareness and emotional intelligence, that those programs tended to be fairly marginalized back then.
Dacher Keltner Yeah. In the small room at the conference.
Jeremy Fogel Yeah. Yeah, exactly. You know, we get 10 people for our seminar, that kind of thing. And now it’s like people pretty much everywhere recognized that it’s important.
And so some of the states that I’ve been asked to work with are, you know, for lack of a better term, very red States.
I think there’s just this sense of, you know, we need better skills for dealing with the stresses of our jobs. So, and I think there’s less of a stigma now. I think there’s more understanding that self-awareness is not a dirty word. I mean, it’s that, it’s, it’s a good thing. And helps you be be better at this particular job.
Dacher Keltner Let’s say it spreads. I mean, we know, for example, mindfulness produces compassion and compassion leads to less punitive, more restorative types of judgements, do you think it’ll change the decisions or judgments that judges run?
Jeremy Fogel I think that’s a subtler kind of change. I don’t think that’s going to happen next week.
It’s interesting. I mean, restorative justice is an incredibly important aspiration for us to have, you know, and when we think about all the ways that people can be hurtful to each other. But it’s really hard. You can pay lip service to it. But I mean, to really do, it takes a tremendous amount of hard work and it also demands a lot of the participants.
So I think that kind of transformative change is still off in the future somewhere. As people start to develop, you know, access their own inner compassion and kindness more that it does slowly affect things. I mean, I think, yeah. And maybe there are fewer judges now who just want to lock people up and throw the key away quite as much as they used to.
You know, I think it’s kind of a slow trend.
Part of being compassionate, you know, you feel compassion for victims as well as perpetrators. And you know, it’s like, you want to make things right for them.
Dacher Keltner Yeah. I want to thank you, Jeremy. I just spoke with three different young people who had switched, you know, from applying to business school or PhD work to applying to law school. And I think that there’s something in the air right now where we’re really thinking about the spirit of justice and, and how to be vessels in the right way. And so, thanks so much for joining us, Jeremy.
Jeremy Fogel You bet, anytime, and thank you.
Dacher Keltner Mindfulness trains us to pay attention to the present moment, but can it lead us to make wiser decisions?
Shauna Shapiro The word mindfulness means to see clearly. And the idea is if you can see clearly, then you can respond effectively.
Dacher Keltner More on the science of mindful decision-making up next.
Shauna Shapiro The word mindfulness means to see clearly. And the idea is if you can see clearly, then you can respond effectively and wisely.
Dacher Keltner Shauna Shapiro is a professor at Santa Clara University and the author of Good Morning, I Love You, a book on how to cultivate mindfulness and self-compassion she and her team did a study to see if training people to be more mindful, could improve their decision-making.
Shauna Shapiro Could we train this capacity to pay attention in this curious and kind way that would develop a student’s ability to meet the present moment and make a wise and compassionate choice?
Dacher Keltner They got 25 college freshmen to take an eight-week, mindfulness-based stress reduction course learning various meditation practices, like the body scan meditation and mindful walking.
Shauna Shapiro And the one way that we did change the mindfulness intervention is we did include practices of self compassion and loving kindness. Which I think are essential to the training, especially with making ethical decisions that when we shame and judge ourselves, it shuts down the learning centers of the brain and so we don’t even have the resources to learn from our mistakes and to make new choices.
Dacher Keltner At the outset of the study, the students filled out a bunch of questionnaires assessing their levels of mindfulness, emotion, regulation, and happiness.
Shauna Shapiro And then we also wanted to look at their kind of capacity for moral reasoning.
Dacher Keltner That’s their ability to assess what’s right or wrong. They did that by presenting them with five moral dilemmas.
Shauna Shapiro For example, one of them is a father contemplate stealing food for his starving family, from a warehouse of a rich man.
Dacher Keltner Another involves a doctor who has to decide whether to give an overdose of painkillers to a suffering patient.
Shauna Shapiro The third is a school board chair must decide whether to hold a contentious and dangerous open meeting.
Dacher Keltner And so on. Each student is then asked to select the course of action they think the character in this scenario should take.
Shauna Shapiro But they’re also asked to rate the importance of 12 statements of reasoning. And that’s where it gets really interesting where you see kind of, how are they making these decisions? What are the different processes they’re going through to evaluate? And so by examining their responses to these kinds of short vignettes, you’re able to assess a person’s moral reasoning.
Dacher Keltner At the end of the study, the student showed greater mindfulness, were better at regulating their emotions and they felt happier.
Shauna Shapiro But, we didn’t see an increase yet in moral reasoning. It was only at the two month followup where we saw a significant increase.
Dacher Keltner Shauna suggests that this is because ethical behavior and moral maturity really take time to develop.
Shauna Shapiro And so it’s only through continued practice that greater benefit. Are seen that this is really a skill that we’re developing.
Dacher Keltner This also raises the question: why would mindfulness lead us to make more ethical decisions?
Shauna Shapiro The way that mindfulness helps in decision-making is that it allows for this kind of process of personal inquiry, as opposed to a purely top-down hierarchical and moralistic process of being told what is right and what is wrong. It teaches people how to listen deeply and stay connected with their values and then gives them this kind of courage and these attitudes of kindness and compassion to make choices that are aligned with that, even when they’re difficult. And it really invites you to reflect on how these choices and actions will lead to the greater wellbeing for yourself and others.
Dacher Keltner I’m Dacher Keltner. Thanks for joining me on the Science of Happiness. If you’d like to try out some mindfulness practices, visit our greater good inaction action website, just visit GGIA.berkeley.edu. You can also find a transcript of today’s email@example.com slash podcast. The Science of Happiness podcast is a co-production of UC Berkeley’s Greater Good Science Center and PRX production assistance from Jennie Cataldo and Ben Manila of BMP Audio. Our senior producer is Shuka Kalantari, our associate producer is Haley Gray, our executive producer is Jane Park. Our editor in chief is Jason Marsh.