Whatever our ability to live in the present when off our zafus, the circumstances of daily life often compel us to make judgments. This is something I do regularly as a trial judge in a court of general jurisdiction—a court that deals with serious felonies as well as with civil disputes. It is with some irony that I carry the title “judge” while taking refuge in a tradition that has as a central tenet the cultivation of the nonjudgmental mind.
In The Mind of Clover, Robert Aitken Roshi writes about the monks of the Ryutaku Monastery, who reformed a young novice they had caught stealing by showering love and compassion on him over the course of a year. Judges and others in decision-making positions, however, have neither the constituencies nor the time conducive to a prolonged practice of lovingkindness toward one person.
So, are we who are called upon to make judgments that affect other peoples’ lives ensnared in an insoluble dilemma? Can the act of judging be harmonized with what becomes part of us though meditation practice? My seven years of experience as a trial judge lead me to conclude that there will always be tensions when the person making the judgment has coercive power. Nonetheless, the lessons of a mindfulness practice can resonate positively with the act of judging. In the Soto Zen tradition, the hallmark of a mindfulness meditation practice is nonattachment to ideas, thoughts, and emotions, and attentiveness to the moment at hand.
Before I enter the courtroom, I do a short exercise of breathing-in and breathing-out in long, mindful breaths. I then remind myself of the situation that is about to take place and who its participants are. Before beginning any exchange with people in crisis, I excise distracting thoughts and emotions as best I can with an approach similar to that which the poet Mary Oliver employs before she begins the composition of a poem: “Insofar as one can, I put aside ego and vanity and even intention. I listen.” Unlike the poet, I am not listening for an inner muse, but rather I am disposing myself to be open to the statements of the litigants, their witnesses, and their attorneys.
An empty and attentive mind affords me the best opportunity of understanding the conflicting versions of a past event. Moreover, it puts the other participants in the proceedings at ease. Of course, listening with clarity and compassion is not an absolute guarantee that the courtroom will not erupt in angry outbursts; yet even when rage or hostility engulf the situation, my breathing practice helps me work to diffuse the anger and return to the task at hand. The practice of emptying the mind of thoughts creates a serene impartiality and a freedom from bias on my part as I preside over a contested trial, and it is this indifference to the status of the parties or to any ultimate outcome, that democratic law mandates.
After the historical facts have been determined, the trial judge must fashion a remedy. In some cases, such as first-degree murder, the judge has no discretion, but in other cases, the judge may factor numerous criteria into the judgment. What is the judge to do with guidelines that can be fairly characterized as elastic? What is fair, and where does justice dwell?
Here I find the Vipassana teachings of conscious monitoring to be of assistance. I strive to be aware not just of my posture, breath, and overall state of relaxation or tension, but also to be conscious of my position karmically and ethically in relation to the person who will live with the consequences of my judgment. In its simplest terms, the question is: Who am I to judge another, and how and why do I sit here while the person to be judged sits there?
I consider Zen Master Seung Sanh’s phrase “Only don’t know” as a summons to adopt the democratic as well as the Buddhist values of intellectual and spiritual humility. This attitude is a frank acknowledgment that as the decision-maker responsible for fashioning a remedy in varied settings, I do not always know what is the optimum solution, and in many cases, the contending parties themselves know what is the best path. I like to believe that my affording them an opportunity to speak directly and forcefully to each other and to a decision-maker who tries to bring an open and clear mind to the situation resolves the controversy along lines they themselves have had a role in drawing.
The person with the responsibility of judgment, whether in a court or in some other forum, must bring to the present moment an empty and impartial mind open not only to the history of the disputed event but also to the teachings of those lawgivers, masters, and poets who have helped us define what the community stands for. “Save all sentient beings,” encouraged the Buddha. “Do justly, but love mercy,” says the Book of Micah. Should we who judge do anything less than strive our best to fulfill these imperatives?