Tuesday, July 17, 2012

A Morning Meditation on the Nature of Judging

I just ran across the editorial in which the New York Timers lauds Tenth Circuit judge John Kane for refusing to allow a defendant to waive the right of appeal.  The headline is

Trial Judge to Appeals Court: Review Me

I'd have to say I don't think that quite captures the point of the piece but it's close enough for government work and it does showcase a hobby-horse of mine, about the nature of judging.  That is: the first requisite of a good judge is a non-neurotic disposition to decicde.   A judge who is allergic to deciding is like a duck without feathers.  For the system, there is no bigger calamity in judging than the guy who bobs and weaves, who kicks the can down the road, who does everything he can to avoid the job he was hired for.

I suppose there are any number of motives impelling one to avoid decision.  Perhaps the simplest is the naked horror of being wrong. Hmph.  Well of course, we want a judge who wants to be right.  But nobody is perfect, and stuff will happen.  In my brief and derisory judicial career, my secretary once asked me: but do you ever consider that you might be wrong? The honest answer is, of course: every single time.   The litigants don't deserve your perfection because perfection is not on offer.  What they do deserve is your best shot.  There's as bit of existential angst here of course, but that's why they pay you the big bucks.   Of course, it was easy for me to be blithe: I never had to do the hard stuff like death penalty or child custody.  I did bankruptcy, and as George Paine, lately retired at Nashville, liked to say, "the nice thing about the bankruptcy court is that we've got no problems money won't solve."  For the integrity of the system, there are few greater calamities than a judge who doesn't want to do what he was put there to do.

Closely related anecdote: I've got a friend (s/he'll remain nameless) who used to work tweendecks at the Department of Labor under Elizabeth Dole when she was secretary.  You remember Elizabeth, once a senator, once a candidate for president, in which role she was famous for demanding to know the color of the carpet she'd be standing on, so she could be sure her shoes would match?  My bud said the worked quickly got round that no decision item was ever to reach the secretary's desk.  Apparently her firm purpose in the job was never to see a headline in the morning paper saying "Senator Dole decides" blah blah, for fear that the trumpeted decision might be wrong.  I gather that not much happened during her incumbency, but I take it that this evasive strategy is not what we taxpayers were looking for when we put her in the job.

Another anecdote: I remember being at a retirement dinner for a bankruptcy judge once at which one of his colleagues congratulated him for having the lowest reversal record (=fewest reversals) in the circuit.  Is that something to brag about, I asked myself? No, it is not.  It almost certainly means that you have gone the Elizabeth route and evaded decision.  If you decide enough, you are bound to get something wrong.  And that is why we have courts of appeals.  No man should be the judge of his own case, and that includes the judge.  In contrast with the judge at the dinner, I remember my friend David, a modest, hard-working, no-nonsense bench jockey who knew how to work hard without letting his ego get in the way.  "My job is to decide 'em," David liked to say, "and theirs is to reverse 'em."   Something they'll never get to do if they don't have the chance.

1 comment:

joel said...

reminds me of the joke punchline--
we didnt promote you because you make good decisions, we promoted you because you are good at making decisions.