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The Judges’ Point of View

On Behalf of | Jun 17, 2014 | Judges

More people are involved in a divorce than just the couple. Lawyers and the judge are involved, too.  I’ve written about some of the biases and barriers that parties bring to the litigation and about the pitfalls and problems which lawyers bring. But tonight I write about judges’ judicial bias; the judge’s point of view.

Judges are people too, they aren’t a computer program or a math formula (as much as I sometimes wish they were). They bring their own upbringing and experience into judging, as do we all.  It is difficult for any one of us to set aside years of programming and tainted perception to make less-fettered judgments. So is it also for our judges.  

If a judge had a bad daddy experience, odds are greatly increased that the judge will have a harsh view of dads and rule less than unbiasedly against them. If a judge had a bad mommy experience, then mom’s are less likely to receive a fair shake in that court room.  

But less obvious are the plentifiul, more nuanced experiences that taint outcomes no less. A judge with a successful father and a less than accomplished mother may also have a dampened view of women generally.  A judge whose father was a fine human being, but was absent most of the time so that he could generate income may find it harder to perceive fathers in a care-taking role. The opportunities for error are as endless as life’s experience and teaching itself.

Such is the challenge of being a judge.  And here’s the rub.  It is hard to envision anyone who is steeped in humility volunteering for the thankless task of rendering judgments.  Rather, a very strong ego is almost certainly a rexquisite for having an interest in that job.  And a very strong ego is a significant impediment to self-critique, analysis, vigorous introspection. In other words, it would be inherently difficult for judges to genuinely question their own biases. When questioned, their most likely answer would be, “who, me? Never.”

If I had my druthers, judicial conferences would include classes on self discovery, analysis, questioning a-priori concepts. I would also like all judges to induldge in the luxury of some form of analysis.  They need their biases vigorously challeged, outside of the court room where they aren’t in charge. They need to exorcise their biases like professional athletes exercise their bodies.

I suspect that much of the bad press given judges stems from their biases, their inability to see facts for the blinders they wear everyday.  That’s when bad judgments are made. That’s when facts don’t matter.  That’s when good people get hurt.

Judges aren’t bad people for making bad decisions, a certain percentage of that comes with the territory. But judges flirt with being bad people when they don’t acknowledge that, as humans, they come with biases, when they don’t embrace that those biases are unwise and unwelcome in a court of law where facts should reign, and when they don’t actively engage in learning to uncover, expose and minimize those biases.

In short, judges should value and seek enlightenment.

May it be so.

Michael Manely