A Paean To Judicial Bias?

Brooklyn Supreme Court Justice Thaddeus Owens used to do a shtick from the bench. He would put on his best Amos ‘n Andy voice and lecture black defendants about their irresponsible conduct. When I was a baby lawyer and had my case called before my client showed, a judge (who shall remain nameless) explained to me that it wasn’t my fault, as my client was on “CP time.

Both of these judges had one thing in common. They were black.

My good friend, Mark Herrmann, offers a post to suggest that judges bring their life experiences to the bench, and so we should anticipate that movements like #MeToo will be reflected in their approach to cases and their rulings.

Bear with me for a minute:

In 1983, the federal appellate judge for whom I clerked had a photograph on her chambers’ wall:  She had been one-third of the first-ever, all-female federal appellate panel, and the Los Angeles Times had covered the event.  (Here’s a link to the proof:  It was Nelson; Fletcher; and Keep, sitting by designation.)

Years later, I was teaching “Complex Litigation” on the adjunct faculty of Case Western Law School, and our casebook included an excerpt from a decision in a sex discrimination class action brought against General Motors that had been heard by that panel (or another all-female Ninth Circuit panel of the same vintage).  I told the class about the picture on the wall in one Ninth Circuit judge’s chambers and said something like, “Too bad for GM’s lawyer.  You’ve got a sex discrimination class action, and you draw the first all-female federal appellate panel.  It’s gonna be a long day.”

That judges bring their experience to the bench with them is hardly a surprise, but what exactly does that mean? Does the fact that the panel in Mark’s example is comprised of three women mean they’re going to rule for women, or that they are going to rule according to law and precedent?

The other day, a nutjob Legal Aid lawyer twitted that the solution to the broken criminal justice system was more black judges and cops. As if it’s not stereotypically racist to assume that a black judge will be more Thurgood Marshall than Clarence Thomas. Or that the bullet emitting from a black cop’s gun will kill differently than from a white cop’s.

At about the same time that I was teaching, I found myself sitting in the back of a California state appellate court, waiting for my turn at the lectern to argue a preemption case.  My panel was three female judges, all of whom had previously served as prosecutors.  This didn’t make too much difference to me, but some guy on the calendar ahead of me was arguing a criminal appeal.  You could tell from the argument that his client had been convicted of both murder and mutilation of a corpse.  The lawyer was objecting to the years that had been added to the sentence for mutilating the corpse.

Apparently, the defendant was convicted of first murdering a woman and then jamming stones into her dead body.  The lawyer made an appeal to common sense:  “Why would he possibly jam stones into her after she was dead?”

One of the female former prosecutors grimaced and asked from the bench:  “Excuse me — but why would he possibly jam stones inside her while she was still alive?”

It’s gonna be a long day.

Was this question because the judge was female? A former prosecutor? Or was it just the obvious question, and the argument proffered was less “common sense” than bad? Another assumption is that a prosecutor will be inclined to be more pro-prosecution, and the corollary is that a public defender will be more woke.

There was a judge in New York County named Harold Rothwax, who has now been dead for a while, and bore the delightful nickname, the “Prince of Darkness.”  He was a Legal Aid lawyer before becoming a judge, but once he got his robe, he turned mean and cynical.  He was very smart, but the job cost him his humanity.

Harold wrote a book, entitled “Guilty.”  It was a horrible book, but insightful to anyone who seeks to understand how a brilliant mind becomes twisted, contorted, bent beyond recognition, when a person assumes the authority to destroy lives.

After a cocktail or two, Harold talked about how his experience as a judge changed him.  Case after case, defendant after defendant, victim after victim, made it all a blur. Sure, cops lied. Everybody knew cops lied. Everybody knew cops lied in every case. That was the game.  It was their job to put the bad guy away, and the way to win the game was to speak the magic words that the system accepted as necessary.

Of course judges bring their life experiences to the courtroom, but to assume that means they fit a cartoon character mold of how they will rule is dangerously simplistic. Former EDNY Judge John Gleeson went straight from the United States Attorney’s office to the bench, and yet he was consistently bold in his denigration of the Draconian sentencing guidelines.

In his “I have a dream” speech, Martin Luther King said:

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.

Should judges be judged differently? This doesn’t merely go to the assumption that female judges will make pro-woman decisions, or ex-prosecutor judges will make pro-prosecutorial decisions. They may. They may not. There is far more to the equation than the obvious, and finding excellent judges requires more than their skin color, genitalia or last job.

And if it makes you sad that you can’t predict a judge’s ruling based on the most obvious indicia of bias, consider that it cuts both ways. If you happen to get three male judges on a panel rather than three female judges, maybe they will be just as inclined to rule in favor of the victim of discrimination because it’s the right decision, not because of their gender and life experiences. Rather than bias in favor of their own kind, we should look more toward bias in favor of the law, regardless of personal characteristics and shallow assumptions about life experience.

14 comments on “A Paean To Judicial Bias?

  1. B. McLeod

    “Identity politics” naturally assume any judge will rule based on the “identity” prevalent in their corner of whatever big tent they are in. We used to call this “stereotyping,” and it was considered irrational and wrong in those days.

    1. SHG Post author

      It’s almost as if advocates desire bias, as long as it’s the bias they want. Wouldn’t it be a shame if it turns out that judges weren’t nearly as predictable as their immutable characteristics would suggest?

  2. Skink

    This is lawyer masturbation. We call each other to get information about a judge new to us in hope of getting valuable bias information, but we know that information is valueless. Trying to out-think presumed bias is a waste of time. Judges hopefully make decisions based on the law and facts given them, if only to avoid having the sent case back after a few years. Even if they don’t, you will never find the bias–the decision was just wrong for you. We do the same thing in picking juries: don’t all prosecutors want the lady whose second cousin was a corrections officer? In some ways, we’re real dopes.

    The best advice I ever got was from a judge when trying a case in front of another judge. He said, “speak slowly.” That’s useful information.

    1. SHG Post author

      Go in front of the same judge a few times and you get to learn his/her proclivities, but rarely do they align with such simple metrics as race, gender or past employment. My personal pet peeve is dumb judges who think they’re brilliant, as I find it hard to argue using only single syllable words. But flattery often fills the void.

    1. SHG Post author

      For just anybody or just black cops? I hear black cops deserve qualified immunity more. Is that what you hear?

  3. WAN

    In the last case I tried, my co-counsel and I guessed, for a variety of superficial reasons (the juror’s job, the way this person dressed) that this person would be the jury foreman leading the jury in our favor. Turned out he was the one holdout in an 11-1 verdict.

      1. LocoYokel

        Great idea. Next summons I get I’m gonna eat so much Mexican (heavy on the beans) the night before it ain’t funny. After all, what can they do, throw me out?


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