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Beneath the Robe: The Role of Personal Values in Judicial Ethics

  • Louis E. Newman

The qualities of a good judge are the qualities of a good man. There are additional demands on a judge, to be sure—knowledge of the law, a willingness to suspend judgment until all the evidence is in. But at last it must be the depth and texture of his humanity that qualify and define the judge.

Those who come before a judge do not really know before whom they stand. The person who presides over the courtroom, cloaked in the solemn black robes of his or her office, is in that moment less an individual than a symbol of democratic values and an instrument of state power. In recognition of that power and authority, all rise as the judge enters the courtroom and takes the seat, elevated above everyone else in the room, from which justice will be dispensed. It is the hope of all, and the conviction of most, that this individual will do his or her job well, dispensing what is perhaps our most precious social good—justice. What no one knows, what no one is even permitted to ask, is the character of the person wearing that robe and the ways in which that individual's personal qualities will affect the performance of his or her duties.

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1. Jackson, Donald Dale, Judges 300 (Atheneum, 1974).

2. See Redlich, Norman, compiler, Standards of Professional Conduct for Lawyers and Judges (Little Brown & Co, 1984). The first code of judicial conduct was promulgated by the American Bar Association in 1924. The current code was devised in 1972 and has subsequently been revised and adopted in all fifty states and the District of Columbia.

3. See Smithburn, J. Eric, Judicial Discretion 329 (National Judicial College, 1980).

4. Bouvier's Law Dictionary, 884–85 (West Pub Co, 3rd rev, 1914).

5. Carter, Stephen L., The Religiously Devout Judge 64 Notre Dame L Rev 932–44 (1989); Idleman, Scott C., The Role of Religious Values in Judicial Decision Making, 68 Ind L J 433–87 (1993). Both of these articles, however, offer theoretical justifications for judges' use of religious values in rendering judicial decisions, not descriptions of actual judicial practice in this regard.

6. I am sensitive to the possibility that my presence influenced the proceedings I observed, though I strongly doubt that this occurred to any significant degree. I observed these judges in the courtroom, in conversation with clerks, and during conferences with attorneys in chambers, sometimes visiting unannounced and sometimes by prior arrangement. I noticed no differences in the behavior of the judges I observed. It should be noted that judges are accustomed to conducting trials in front of reporters and observers, and also to having their clerks and secretaries coming in and out of their chambers during conferences. Interviews consisted of two or more sessions, lasting a total of three to four hours with each judge. I did not interview attorneys or clerks about these judges. Their perspectives, of course, might differ from those of the judges themselves. My conclusions, then, are based entirely on the judges' self-reflections.

7. It should be noted that this state's legislature recently adopted a set of sentencing guidelines for various offenses and types of offenders, which significantly restrict judicial discretion in the area of sentencing. Yet judges are still permitted to vary up or down from the guidelines (on the basis of pre-established criteria) and choose to do so with varying degrees of frequency (itself a matter of discretion). The establishment of sentencing guidelines in the federal judicial system and in many states results, of course, from a concern to ensure greater consistency in sentencing and to eliminate potential inequities, especially those based on race. For a study of such inequities in sentencing, see Gaylin, Willard, Partial Justice: A Study of Bias in Sentencing (Alfred A. Knopf, 1974).

8. Bosk, Charles L., Forgive and Remember: Managing Medical Failure (U of Chicago Press, 1979).

9. This distinction between technical errors and moral failings parallels the distinction between “mere legal error” and “misconduct”; see Shaman, Jeffrey M., Lubet, Steven and Alfini, James J., Judicial Conduct and Ethics 2022 (Michie, 1990).

10. Id at 99-100.

11. Goldman, Alan H. in The Moral Foundations of Professional Ethics (Rowman and Littlefield, 1980), describes this sharp distinction between personal and professional personae as “strong role differentiation” and argues that all professional ethics rely on such role differentiation to some degree, but none more than judges; see especially pages 34-62. For a contrasting view, see Luban, David, Lawyers and Justice: An Ethical Study (Princeton U Press, 1988) who suggests that lawyers (Luban does not discuss judges) ought not to separate their professional responsibilities so sharply from their moral obligations as members of society.

12. Arguably, the same could be said of others who serve the state, such as police officers and elected officials. Instances of police brutality and official corruption are particularly disturbing to us precisely because they reflect on the possibility of justice in a democratic society. Unlike legislators, judges are expected to remain above partisan politics and, unlike police officers, they are charged with rendering justice, not merely enforcing law and order. In that sense, moral judgment is essential to their professional duties in a way that it is not for other civil servants. Perhaps prosecutors have a kind of discretion which comes closest to that of judges, in that their role within the justice system leaves them significant latitude to make decisions based on their own judgment about what is in the best interest of society. See Pinkele, Carl F. and Louthan, William C., eds, Discretion, Justice, and Democracy: A Public Policy Perspective (Iowa State U Press, 1985), which includes essays on prosecutorial, judicial and police discretion.

13. It is not entirely clear when the practice of wearing judicial robes began. In the middle 15th century long gowns called “houppelandes” were worn by men of learning and were regarded as a symbol of dignity. It may only have been in the 16th century, however, that academic robes were worn by judges. See Nunn, Joan, Fashion in Costume, 1200-1980 18 (Schocken, 1984); also, Yarwood, Doreen, The Encyclopedia of World Costume 201 (Charles Scribner's Sons, 1978).

* Associate Professor of Religion, Carleton College.

This article was first researched and written in the context of a multi-year collaborative research project on “Religion, Morality and the Professions in America” sponsored by the Poynter Center for the Study of Ethics and American Institutions at Indiana University and funded through a generous grant from the Lilly Endowment. I want to acknowledge especially David Smith and Richard Miller, who organized the project, for enabling me to participate in this unique endeavor, as well as to the other participants whose responses contributed in many ways to the conceptualization of this study. I also wish to acknowledge the guidance I received early in this project from Judge Roland Amundson, Minnesota Court of Appeals, who helped me to formulate many of the issues addressed in this paper. In addition, I received valuable comments on earlier drafts of this paper from my wife, Amy Eilberg, and from several friends and colleagues: Elliot Dorff, Joel Green, Daniel Mandil, and Riv-Ellen Prell.

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Journal of Law and Religion
  • ISSN: 0748-0814
  • EISSN: 2163-3088
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