Professional skepticism vs. leaping to conclusions ~ Judge Alito vs. the Democrats

Fred Hutchison
RenewAmerica analyst

During the hearings in the Senate Judiciary committee, Judge Samuel Alito exhibited a quality called "professional skepticism." He is perhaps the most perfect example of this quality who has come before the public eye in recent years, and those who teach professional skepticism could use him as a model.

The sharp contrast between Alito's cautiously studied approach to the law and the recklessly polemical methods of the Senate Democrats was highly instructive. Professional skepticism is the exact opposite of a fallacy called "jumping to conclusions" or "hasty generalizations."

The narrow partisans, metaphysical skeptics, and closet nihilists in our midst have given skepticism a bad name. However, a very special kind of studied skepticism is essential for quality work in those professions that risk coming to plausible but false conclusions. Some of the fields that require professional skepticism are law, medicine, research, investigation, quality control, safety inspection, journalism, and auditing.

Professional skepticism is a state of suspended belief--or tentative disbelief--as one patiently and systematically seeks the truth. The suspended belief is not a negative bias, but a resistance to coming to a premature conclusion. One with an open mind must not be too hasty in drawing conclusions. A conclusion is the point at which one begins to close his mind to alternative possibilities.

Suspended belief is expressed through a questioning and seeking attitude that is maintained as one wades through masses of information, interviews people, sorts and organizes facts, and weighs the evidence. All information and evidence is to be carefully weighed and scrutinized. This must be done while maintaining an open mind and a commitment to the truth.

The measure of a professional

Profession skepticism is a tricky balancing act. One must be skeptical, questioning, rational, thorough, systematic, patient, persevering, open-minded, impartial, and devoted to the truth--all at the same time. Very difficult. Thus, professional skepticism is a difficult art to master, and a quality that sets the professional off from the amateur. The degree of mastery of this art distinguishes the seasoned professional from the mediocrity.

One of the defining characteristics of mediocre judges is the lack of professional skepticism. The two swing votes on the present Supreme Court, Anthony Kennedy and Sandra Day O'Connor, are mediocrities, precisely because they have never mastered the fine art of professional skepticism. When they jump to conclusions based upon the "feel" of a case, or an exotic theory, they expose themselves as amateurs and dilettantes in the art of jurisprudence. If Alito replaces O'Connor, which seems probable, the court will become more professional, rational, and careful, and less amenable to unsound legal novelties.

The master detective

Professional skepticism is one of the recurring themes of the television show Poirot, based upon Agatha Christie's detective stories about the Belgian master detective, Hercules Poirot. After the police make up their minds about a case, Poirot is still following clues like a bloodhound. When Poirot finally solves the case, the police are invariably embarrassed. What is Poirot's secret? "I use my little grey cells" (of the brain), he says. Every step he takes in a case is a step of intellectual analysis. He does a great deal of thinking about clues and evaluating the evidence before he comes to a conclusion. In contrast, the average person tends to jump to conclusions and only then employ "the little grey cells" to rationalize and defend the conclusion.

Relatively few people seriously think before they make decisions. The pattern of human vice and folly is to make impulsive choices based upon inflated conceits about what they know and then make defensive excuses for their bad choices. Poirot is a figure of virtue and wisdom because he studiously thinks through a case from beginning to end before he draws a conclusion. He keeps his mind in a humble state about what he really knows about a case until he has solid grounds to stand upon. In order to make certain he is correct, he goes to a lot of trouble to test and prove his conclusion. Poirot understands that the world is more complex and subtle than even a seasoned observer might suggest, and the cleverest detective can be fooled if he does not put his conclusions to the test.

Poirot has a sidekick, Hastings, who invariably indulges in premature speculations. Poirot courteously listens to these perambulations with his characteristic look of skepticism, and either quashes it by pointing out a simple fact, or expresses doubt about the direction that Hastings is going. Poirot is sensitive to the delicate cross-currents of the case, while Hastings follows the most obvious clues in a straight-ahead manner, invariably skipping important steps in a rush to judgment.

Agatha Christie uses Hastings as a stage prop to give Poirot a sounding board as he reveals to the audience the wrong way to proceed in the case. This tactic highlights Poirot's investigative art, gives the audience a hint of what Poirot is up to, or mystifies the audience because he is not doing what they expect. Suspense novels by Christie will reward a second reading as one discovers all the hints that one missed the first time around and how these missed clues logically lead to the murderer.

Judicial "rope a dope"

Poirot gives a perpetual class in professional skepticism as he teaches us how to sort out the false clues from the true ones. Hastings plays the role of jumping to conclusions. His very name "Hastings" suggests haste. In the recent hearings of the Senate judiciary committee, Alito played Poirot, and instructed us in trained skepticism. The Democrats played the part of Hastings and jumped to hasty conclusions. No matter how flimsy their conclusions were, the Democrats stuck with them like bulldogs.

As Poirot used Hastings as a prop, Alito used the Democrats as a prop to display his exquisite and artful methods of finding his way through the labyrinths of the law.

Each hasty and strident question or demand by the Democrats brought forth calm, intellectual explanations of the nature of particular cases and an exposition of the bearing of statutes and precedents upon the cases. When the senators tried to lead Alito to places a judge must not go, he responded by laying out the frameworks and processes by which a judge must proceed in particular cases. He did not directly contradict the senators, but used his "little grey cells" to indirectly expose the logical fallacies or improprieties in their questions, in the off-chance hope that they might care to listen and think.

If the senators did not get the point, did not want to get the point, or tried to circumvent the true question at hand, their haste and prejudgment became evident to the television audience when Alito calmly returned them to the point. The Democrats were like a class of novice karate students who are gently disarmed by the master of the school without quite knowing what is happening to them. Some of the senators, like Joseph Biden, were tone deaf and oblivious to how bad they looked on television. Ted Kennedy, who is smarter and meaner than Biden, did a slow burn because he realized that he was playing the chump before the cameras. He could not find a way to punch his way out of the paper bag that Alito artfully dropped over him. In a rope-a-dope frenzy because he could not lay a glove on Alito, Kennedy tried to bully Arlen Specter, Chairman of the Judiciary Committee, who spanked him like a bad puppy.

A class in professional skepticism could be taught by selected clips of Poirot correcting Hastings, interspersed with clips of Alito gently instructing the hasty Democrats about how a judge can and cannot proceed in the process of jurisprudence.

The empirical scientist

Professional skepticism had its origins in science and subsequently was adopted in investigation and law. Francis Bacon (1561-1626) laid the empirical foundations for modern science: The scientist must begin his research with the careful observation of objects and phenomena. Such observations must be recorded, described, measured, quantified, and classified. The recording of the observation provides a document with "evidential value," in the lingo of law and auditing. "Empirical evidence," is the preferred phrase in science, and "factual evidence" is preferred in investigation.

The scientist must evaluate the quality, or "evidential value," of the evidence. Then he may proceed to take a tiny step of inductive reasoning about what the evidence implies. Bacon warned against "flying up to sweeping generalities." He said the scientist must have "weights on his feet," rather than "wings on his feet," so that he takes one inductive step at a time, rather than jumping to conclusions. Each step must be tested and critically analyzed before the next step can be taken. The scientist must try to disprove his tentative conclusions, and if he cannot disprove them, he may proceed to the next logical test. Thus, he slowly builds an unbroken chain of induction beginning with the facts. The unbroken chain of evidence, tests, and evaluations is the exact oppose of leaping to conclusions, in which rash speculations replace the trail of facts.

Auditors are required to document all steps of observation and testing in their work papers. The "audit trail" in the work papers begins with the rationale for a test and leads to the documentation of the test and the evaluation of the evidence. Such evaluation must be traceable to the auditor's conclusions and recommendations in his report. One might trace through twenty pages of work papers while following an audit trail to its conclusion. Breaks in the documented audit trail open the auditor to the accusation of the lack of due professional care, because one cannot tell how the conclusions flow from the documented tests and the evidence.

In like manner, critiques in peer-reviewed journals of scientific research sometimes question whether the researcher's conclusions are supported by the facts presented in his research. Journals of law review contain similar criticisms of hasty conclusions drawn in judicial rulings.

Speculation about future cases

Judge Alito refused to speculate about what his conclusions might be in cases yet to come before him. Every case has its own fact pattern, its own evidence, and often a unique relationship to legal precedent and to statutory law. Without knowing all such facts and principles and hearing all the arguments, professional skepticism wisely blocks speculations and discussions of hypothetical situations.

A judge can explain the fact pattern, evidence, and legal precepts that guided him in cases that are matters of record. He can explain the kinds of procedures and legal precedents he might bring to a certain kind of case. But any hint about his vote in a hypothetical future case is unethical. If he is a true professional, he will be aware that he does not know how he will rule until he knows the facts and hears the arguments.

Sometimes a surprise, like a jack-in-the box, might spring up to embarrass the hasty judge. An unexpected bit of evidence that comes to light late in the game, or a surprising twist of law, might be the embarrassing jack-in-the-box. Judge Alito was wisely on his guard about a potential jack-in-the-box surprise. Of all the criticisms vented at him, there were no reproaches about his legal craftsmanship or his concern about legal loose ends.

Unjust law

The liberal senators on the Judiciary Committee were more interested in the practical outcomes of law than the process of law. Unfortunately, outcome-driven jurisprudence is inherently unjust. When a judge stretches and remolds the law to provide a social result that he feels is desirable, he must do it at the expense of justice for the opposing parties who come before him.

The plaintiff's attorney in a civil case makes his case that the defendant violated the law or breached a contract. The defendant's attorney will argue that the defendant did not violate the law or breach an agreement. The dispute may center upon how the law or precedent applies to the case in question. The case of the plaintiff's lawyer may depend upon legal precedents from prior cases to explain why and how the defendant broke the law or breached a contract. If the unjust judge invents a novel theory of law because he wants to change society, and he therefore finds for the plaintiff, it is unjust to the defendant who could not have predicted how the law would be construed when he took the action that was later ruled illegal. If the social-engineering judge finds for the defendant, it is unjust to the plaintiff, because he is left naked to harm, not knowing how to use the law to defend his interests.

In criminal cases, the government is the plaintiff, and the defendant is the alleged violator of criminal law. If the unjust judge twists the law to find for the plaintiff, then an innocent man might go to jail for an action he had no reason to construe as a crime. If the unjust judge finds for the defendant, then society is injured as criminals go free, escaping through loopholes in the law that did not exist before the judge made his ruling.

No matter how golden the intentions of the outcome-based judge are, his decisions are unjust. He creates a real injustice in the legal system, while pursuing a speculative good for society that may or may not work out in the real world the way he expects. The result is an accumulating hodgepodge of legalized injustice that must gradually subvert the society in which it operates, and morally corrupt many of the citizens. Outcome-based law is a powerful acid that eats away at the social fabric, and corrodes the rationality and order that make civilization possible.

Conclusion

Seasoned judges who practice professional skepticism as they sit on the bench are an effective antidote to unjust outcome-based court decisions. Judges who refuse to leap to conclusions, but insist on knowing all the facts and laws and hearing all the arguments, are our chief defenders of justice and a rational ordered society. Judges who speculate about outcomes in the real world and twist the law to provide the outcomes they desire must of necessity behave unjustly towards the plaintiff or the defendant. Such judges are enemies of justice and a threat to reason, order, and civilization.

The scriptures teach that justice is one of the fruits of righteousness and wisdom. The connection between wisdom and justice is particularly intriguing. "I wisdom dwell with prudence, to find out knowledge of witty inventions." (Proverbs 8:12) Prudence operating through the discipline of professional skepticism can discover witty inventions that lead away from discovering the truth and rendering justice. The witty inventions might be the ruses of clever lawyers or the arbitrary law of liberal judges. Verses 13-16 amplify this lesson about wisdom and prudence and bring us to the conclusion of justice in government: "The fear of the Lord is to hate evil, pride, and arrogance, and the evil way, and the perverse mouth, do I hate. Council is mine, and sound wisdom. I am understanding; I have strength. By me [by wisdom] kings reign and princes decree justice. By me [by wisdom] princes rule, and nobles, even all the judges of the earth."

Thus, having just judges who are wise and prudent is one of the means God provides for a nation to be ruled so that justice might be established throughout the land. The harsh process of the Senate confirmation hearings can providentially serve to winnow out the foolish and unjust nominees, and confirm the wise and the just nominees. Harriet Miers, a candidate who was not equipped with the intellectual tools to practice professional skepticism, was winnowed out before she got beyond the phase of informal meetings with senators. Two just and capable judges, John Roberts and Sam Alito, have passed through the Senate committee gauntlet and survived the blows of unjust senators. Praise be to God for his providential care of this Republic.

• RenewAmerica analyst Fred Hutchison also writes a column for RenewAmerica.

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