FRANK, Circuit Judge.
1. Appellants complain that the District Court, having appointed Referee Olney as Special Master in Chapter X proceedings begun by involuntary petition and contested by appellants, denied appellants' application to remove that Special Master because of bias. Appellants point to matters alleged to show such bias, most of which are so frivolous as to deserve no discussion. Special emphasis is put on these facts: The Master has heretofore entered orders, accompanied by findings, adverse to appellants; the District Court's orders, approving these orders of the Master, were, in some instances, reversed by this court on previous appeals;
Democracy must, indeed, fail unless our courts try cases fairly, and there can be no fair trial before a judge lacking in impartiality and disinterestedness. If, however, "bias" and "partiality" be defined to mean the total absence of preconceptions in the mind of the judge, then no one has ever had a fair trial and no one ever will. The human mind, even at infancy, is no blank piece of paper. We are born with predispositions; and the process of education, formal and informal, creates attitudes in all men which affect them in judging situations, attitudes which precede reasoning in particular instances and which, therefore, by definition, are pre-judices. Without acquired "slants," pre-conceptions, life could not go on. Every habit constitutes a pre-judgment; were those pre-judgments which we call habits absent in any person, were he obliged to treat every event as an unprecedented crisis presenting a wholly new problem he would go mad. Interests, points of view, preferences, are the
In addition to those acquired social value judgments, every judge, however, unavoidably has many idiosyncratic "learnings of the mind," uniquely personal prejudices, which may interfere with his fairness at a trial. He may be stimulated by unconscious sympathies for, or antipathies to, some of the witnesses, lawyers or parties in a case before him. As Josiah Royce observed, "Oddities of feature or of complexion, slight physical variations from the customary, a strange dress, a scar, a too-steady look, a limp, a loud or deep voice, any of these peculiarities * * * may be, to one, an object of fascinated curiosity; to another * * *, an intense irritation, an object of violent antipathy."
But, just because his fact-finding is based on his estimates of the witnesses, of their reliability as reporters of what they saw
His findings of fact may be erroneous, for, being human, he is not infallible; indeeds, a judge who purports to be superhuman is likely to be dominated by improper prejudices. When upper court judges on an appeal decide that the findings of a trial judge are at fault because they — correctly or incorrectly —
These comments dispose of the issue here. Referee Olney has honorably discharged the duties of his office for many years. Nothing in his official career or in the record of this case justifies the suggestion that he did not and will not conform to the judicial standards of fairness as we have defined them. Judge Coxe, one of our ablest and most experienced trial judges, has refused to remove Referee Olney as Master in these proceedings. We see nothing to warrant us in interfering with Judge Coxe's discretion. Indeed, had he ruled otherwise, we would have been strongly inclined to reverse him.
2. The District Court made an order vacating a notice given by certain of appellants of the taking of the depositions of witnesses whose testimony might bear on the issue of solvency, but with leave to these appellants to make a new application for taking such depositions after the petitioning creditors had put in their evidence. It is argued that this order constituted reversible error. We cannot agree. Under General Order 37, 11 U.S.C.A. following section 53, the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, in so far as they are not inconsistent with the Bankruptcy Act or with the General Orders, are to "be followed as nearly as may be" but "the court may * * * modify the rules for the preparation or hearing of any particular proceeding." Accordingly, the order of which complaint is made was within the discretion of the District Court. No abuse of discretion appears.
Affirmed, except as to the appeal from the order refusing to appoint special counsel, which appeal is dismissed as moot.
FootNotes
The unrecognized, unspoken, bias is dangerous. Darwin said that he found it so easy to pass over cases opposed to his favorite generalizations that he made it a habit to jot down every exception which he observed or thought of, as otherwise he would be almost sure to forget it. It is difficult to agree with Rohrlich (17 Am. Bar Assn. J. 481) that it is wise for judges to suppress the expression of certain factors in the process of decision-making, that such suppression tends "to reduce the influence of those factors."
What Herbert Spencer said as to more general preconceptions has a bearing here: "The only reasonable hope is, that here and there one may be led, in calmer moments to remember how largely his beliefs about public matters have been made for him by circumstances, and how probable it is that they are either untrue or but partially true. When he reflects on the doubtfulness of the evidence which he generalizes, collected hap-hazard from a narrow area — when he counts up the perverting sentiments fostered in him by education, country, class, party, creed — when, observing those around, he sees that from other evidence selected to gratify sentiments partially unlike his own, there result unlike views; he may occasionally recollect how largely mere accidents have determined his convictions. Recollecting this, he may be induced to hold these convictions not quite so strongly; may see the need for criticism of them with a view to revision; and, above all, may be somewhat less eager to act in pursuance of them." Spencer, Study of Sociology (1873) 356-357.
It is not without interest that one of the much-quoted statements in the Rhetoric on "natural" or "universal" law is contained in a passage in which Aristotle advises that, if the written law is against a litigant, he should urge that the case is governed by unwritten "universal law," but that, if the written law is in his favor, he should dwell on the dangers of resorting to such unwritten principles. See Aristotle, Rhetoric, Book I, Chapter 15.
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