RE: "The Judging Process and the Judge's Personality" Frank, Jerome

Frank, J. (1930). Law and the Modern Mind. Coward McCann, Inc.

I accept the assertion that stimuli, prejudices, and biases, both conscious and unconscious, are unavoidable in the legal process and, more specifically, in judicial adjudication. An intellectually honest judge, one committed to the ideal of simply applying the law as written, will overcome this however.

Allow me to elaborate. When I first hear of a case and the circumstances and questions it presents I usually develop an opinion, or conclusion, on the spot, without contemplation or due research. This conclusion may be moral or political—outside of the law and without regard for it—and/or based on prior knowledge or conception of the law. If after further examination however, provided I am interested or motivated into going deeper than initial prejudice, I discover legal facts which contradict my opinion, or insufficient legal justification to bear the weight of it, I will reverse my opinion and/or reach or concede to a conclusion opposite of my personal inclinations. I will do this if I am at all intellectually honest that is. Not so much with others but with myself.

As evidence of this I offer the example of the federal ban on partial-birth abortion and it’s questioned constitutionality before the courts. On personal grounds I support the bill and it’s purpose. I oppose abortion in general but the practice of partial-birth abortion strikes me as especially abhorrent. It is a brutal and gruesome practice antithetical to the ethical and moral standards I believe we as a nation should hold. This is a personal moral or values judgment—a personal inclination if you will.

On deeper inspection and contemplation however I realized I had to set aside my personal prejudice and accept a justification which contradicted it. The federal government is one of limited and enumerated powers, with all powers not given to it in the constitution, or not denied to the states, belonging to the states. Nowhere in the constitution is a power granted to the federal government allowing it to venture into the issue of abortion. It is a state issue, sovereign of all federal interference.

Though I think the federal partial-birth abortion ban to be a good idea and a good law, it is not the federal government’s law to make. As a result the only honest avenue left for me to take is to espouse the opinion that yes, the law is unconstitutional.

My personal opinions and inclinations, nor the personal opinions and inclinations of any man, are not supercedent to the law. Assuming our judges are not only cognizant of this, but abide by it, than conscious and unconscious stimuli, prejudices, and biases are not a problem. Guided by this principle the rule of law will continue on.