Irrespective of your political viewpoint, it is hard to watch what judges do and be able to say that their personal experience and beliefs don't enter into how they rule.
I've watched judges for more than 3 decades, up close and personal. In court and in chambers. Worked for and litigated in front of. Any objective observer has to admit that the most important thing when a judge rules is that he or she wants to reach a particular conclusion - then, it's trying to find the statute or case law that allows a ruling consistent with that desire. Sure, there are many situations when the law is so crystal clear that a good judge feels compelled to make a particular ruling, but so much is left to discretion, so much immune from appeal, that these almost seem to be a rarity.
The judicial system we inherited from the English goes back almost a millennium - it has always been dependent on a judge deciding which statutes or prior rulings apply to a particular set of facts. Usually, the facts of the case before the judge is a variant of prior rulings, or a statute is ambiguous - the judge applies his or her experience and bias to decide which rule applies - if no rule is on point, a new one is created out of imagination. The law grows, and develops.
Is it fair? Maybe not. Is it predictable? Not always. Is there a good alternative? Not to my knowledge.
Do I want the laws and rulings that seemed appropriate in 1880? Not at all - we've learned a lot since then. How about 1780? Well, the Founding Fathers had a lot of good ideas: The main one is the balance of powers to keep any one branch of government from going it alone too far off in one direction or another.
What about that Constitution? Why does it have so many vague provisions? "Due Process of Law": What does that mean? It certainly isn't a clear standard. Only the justices appointed to the Supreme Court can tell us how to apply that standard to the facts of a particular case, and give us guidance for similar cases that occur in the future.
Do we want them to develop a rule based on the specific beliefs of a founding father who lived in a society that was predominantly rural, women couldn't vote, negroes counted as 3/5th of a person when counting slaves for purposes of apportioning representation - although they couldn't vote? Beliefs that never knew a vehicle could travel 130 mph, that goods could be ordered in days between states using the Internet, that a rifle could fire hundreds of rounds per minute, that a ballistic missile could go half way around the world with a bomb that could kill millions in 1/2 an hour? Beliefs that could not have imagined air travel, television, real medicine, and other scientific discoveries?
Two centuries ago, farming was within the skill level of most of society, and factories almost unknown - there were few large, dense slums - periodic boom/bust cycles of capitalism didn't affect the entire nation as they do today.
If we expect our judges to pretend they know what the Founding Fathers would have done in our modern society, we are bound to be disappointed. Our system is designed to learn from itself and the experiences we have had over time.
