Biased Judges and MALAGA

If we are honest with ourselves, we understand that we are all simmering cauldrons of bias. While life experience may destroy some biases, it also provides ample opportunity to pick up new ones. That’s the human condition.

What good would a judge do who became not-human? Child abuse cases used to give me a knot in my stomach and sometimes I felt an empty space where my heart should be. My emotional response could become so overwhelming it felt physical.

Acting on a bias is permissible when the action is based upon the admissible evidence before you. Otherwise, you could never try a case, because there is always a time when you are ready to call it but you haven’t called it and a dipstick into your soul would reveal a one-sided view of the case.

Biases not based on the evidence in the case exist and will always exist. We learn not to act on them. “Baby judges” are quickly socialized to that lesson. If the socialization does not take, they develop a poor reputation and make few friends within the profession — a significant penalty in a lonely profession where you are beset daily by hard choices you cannot discuss with anybody but other judges.

We are taught that we should avoid unlawful bias and also the appearance of bias. Avoiding the appearance of bias is at odds with political reality in states like Texas that practice the partisan election of judges. I came to the Bench from a civil rights practice and I was toting a bias — not merely the appearance of one — in favor of the powerless…