Judges come daily to the bench with the same baggage or maybe the same idiosyncratic lenses as the rest of us.
William James elegantly referred to it as being under “the total push and presence of the cosmos.” But even better was Supreme Court Justice Benjamin Cardozo’s wondrous phraseology in “The Nature of the Judicial Process:” “There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives us coherence and direction to thought and action. Justices cannot escape the current any more than other mortals… . In this mental background every problem finds its setting. We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own.” A judge may be down on religion or guilt ridden in favor of the underclass, or may unalterably believe that God, if there is a God, and government should only help those who help themselves. A judge may see legislative fiat as buffoonery and presidents as political whores who will do anything for a victory.
Indeed, a president or lesser executive appoints judges, or an electorate elects them, precisely because of those subjective experiences — “their own eyes.” Judges operate from their own perspectives. A judge cannot be, any more than anyone else can be, defined or encapsulated by their ethnicity, gender, scholarly, political or legal backgrounds, nor by their answers to litmus tests on critical social or political issues by the opposition du jour during confirmation hearings.
It is a small wonder that, in the quotidian workings of the courts and in the thousands of rulings that any one judge makes every year, a judge down the hall or in a different court may come at the real stuff of the judicial process from a completely different perspective, and with a potentially starkly different result. Can we, either as members of the court or as everyday citizens who come before the court, require that the judge undress herself from her robes to tell us what she viscerally thinks because of her life experiences that so inevitably and critically impact her rulings? Certainly, and for some perhaps sadly, not!
The 2nd U.S. Circuit Court of Appeals was recently faced with an unusual appeal in which a criminal defendant raised an intriguing question about the limits on what perspectives a judge can properly bring to bear on the bench. In United States v Bari, No. 09 1074-cr, 2010 WL 1006555 (2d Cir. Mar. 22, 2010), the 2nd Circuit considered whether then-District Judge Denny Chin (now on the 2nd Circuit bench) erred in a supervised release revocation hearing in considering information confirmed by the court's own Internet searching. In other words, can a judge confirm his own hunches by Googling?
