Posted September 20, 2017 1:30 PM
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Book asks judges what makes them make the decisions they do

Lawyers' Forum

By Rita M. Novak
Rita M. Novak is a retired Cook County Circuit Court associate judge  and past president of the Illinois Judges Association.

The explorations in Joel Cohen’s engaging book stem from reflections of Justice Benjamin N. Cardozo in “The Nature of the Judicial Process,” published nearly 100 years ago. Cardozo’s classic work examined the “ingredients” that go into judicial decisions.

For Cardozo, the inescapable ingredient was found “deep below consciousness” and consisted of the “likes and dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits, and convictions, which make the man, whether he be litigant or judge.” Thus, regardless of how rational a judge strives to be, his “philosophy of life” insinuates itself into the decision-making process.

With Cardozo’s reflections as the backdrop for “Blindfolds Off: Judges on How They Decide” (American Bar Association, 2014), Cohen interviewed 13 federal judges and through thoughtful questioning had them articulate the basis for their decisions in high-profile or complex cases.

Mainly, he probed how their decisions might have been impacted by compelling current events or their backgrounds and experiences.

Each interview is preceded by a short biography of the judge and a summary of the circumstances surrounding the cases discussed. The biography section consists of prior political or ideological affiliations, judicial and legal experience and critical events in the judge’s personal life, any of which could lay claim to a role in the judge’s decision-making.

The summaries provide a broader view of the historical events and the overall litigation in which the issues discussed presented themselves.

This format sets an inviting stage for the interviews. Cohen’s accessible prose makes the introductory sections not just interesting in themselves. It successfully draws the reader into the context in which the judges discuss the decision-making process.

The interviews lie at the heart of the book. They invite the reader to assess the judges’ candor and self-awareness about the role personal predilection or world view plays in their decision-making.

A sampling: Judge Leonie Brinkema, sitting in Arlington, Va., and Judge Alvin K. Hellerstein, sitting in Manhattan, both near the location of 9/11 tragedies, discuss their rulings in cases arising out of the attacks on that day.

For Brinkema, the subject is the criminal trial of Zacarias Moussaoui as co-conspirator of the bombings. For Hellerstein, the topic pertains to more than 10,000 civil actions involving injuries arising at the Twin Towers site.

Judge Nancy Gertner, a former criminal defense and civil rights lawyer, relates how she decided a tort claim involving the wrongful conviction of innocent defendants perpetrated by FBI misconduct.

Judge John E. Jones III describes his ruling in an “intelligent design” case and the conservative firestorm that followed, one ignited by partisan attackers who perceived the decision as unfaithful to the judge’s prior political affiliations.

Judge Vaughn R. Walker talks about his decision to invalidate Proposition 8, a ban on same-sex marriage, and his status as a gay man.

Overall, the interviews leave the impression that the judges are thoughtful and dedicated to their work — that they serve the public well. Most acknowledge the potential that past experiences and personal propensities may enter into their decisions.

There is, however, a marked difference in the judges’ level of introspection and self-awareness. Some describe their decision-making in matter-of-fact, even formalistic, ways. Others display real depth in their efforts to set aside biases and prejudices and to employ techniques to guard against their having a determinative role in the decision’s outcome.

Each person will have preferred interviews. I have mine. Here, though, I will focus on larger lessons from the interviews that might be useful to other judges. I’ve grouped the lessons into three categories.

Self-awareness and self-reflection are critical in the quest for neutral decisions. Achieving these skills is an ongoing struggle. Transcendence is required to move beyond the judge’s own experiences and world view.

Seeing facts and events from someone else’s point of view, preferably someone outside the judge’s usual environment, enriches the interpretation of facts and provides a fresh vantage point for the application of the law. Gertner and Chief Judge Alex Kozinski have highly developed theories about reflective decision-making.

Whether in the context of settlement or trial, allowing the facts to unfold and guide the outcome of the case is a check on subjective rulings. Starting with organizing facts early in discovery, as Hellerstein discusses, or awaiting the evidence on a crucial issue, as Judges Charles P. Kocoras, Jones and Walker describe, letting the facts lead where they will keeps the rulings objectively grounded.

In addition, the judge’s own hands-on examination of the evidence, really sifting through it, serves the same purpose. Writing decisions to maintain disciplined thinking is another important technique.

The judicial process itself is crucial to preserve the integrity of the proceeding and the ruling. Taking care to ensure that the process not only is fair but also looks fair rates high in all the judges’ experience.

In this category, judges will find camaraderie when they read about the frustrations of others in managing complex cases and keeping the proceedings on track.

The work of a trial judge can be a solitary enterprise. It is comforting to have the experiences of other judges to draw on.

“Blindfolds Off” is a nice companion as well as an interesting read.

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