There's Judging and There's Judging

A(nother) former student of mine is applying for a judgeship.  I think he's an ideal candidate and it would fill me with great (reflected) pride to see him get it, but it does set me back to thinking about a topic I guess I've written about before--namely, the characteristics of a good judge. And which I write about again now partly because I think I've just had (egad) a new thought.

Core point: people often talk about the judge in terms of how "intelligent" he is.  Fair enough: you don't want your judge dumb as a box of nails.  But "intelligence," though it may be on the list of qualities you want in a judge is not at the top of the list.  I'd put it down somewhere like fifth or sixth, behind balance, predictability, a willingness to listen, a decent work ethic.   Oh, and integrity, I almost forgot about integrity.  Oh, and a willingness to decide stuff.  Amazing  how many judges don't like to decide stuff.  A dreadful quality in a judge, like a duck being allergic to feathers.  It can turn him/her into a monster.

And an absence of vanity (I guess I am up past 5-6 now)--a willingness to work hard without letting his ego get in the way.  Coincidence, I was trying to spell this out to Mrs. Buce just the other night. Do you remember, I asked, the OJ trial (no link required)?  Of course you  remember the OJ trial, but do you remember how at the same time, there was a trial going forward in New York, some kind of mass shooting, maybe the Long Island Railroad (correct).  The defendant was a showman who saw the courtroom was his theatre.  Do you remember that trial?  Well, um… we don't have cable.

Okay, do you  remember the judge in the OJ case?  Of course.  It was Lance Ito, he of The Dancing Itos, one of the few judges with his own IMDb page.

Okay, do you remember the judge in the Long Island Railroad Case?  Well like I said, we don't have cable.  Yes, but that's the thing.  Even without cable, you knew all about Ito.  He made himself part of the story.  The judge in the LIRR case made you forget he was there.  That's a big difference.  Making you forget he was there: what I call a sterling quality in a judge.  

So far, so good.  But now a new fillip.  The topic being judges who get their name in the papers,  Mrs. Buce muttered.  "Judge Judy…"  She didn't follow up on the point, but I guess I get what she was driving at: Judge Judy is the very definition of a judge who gets her name in the paper.  And--

And what?  And, you could say, she isn't a judge; like the defendant in the LIRR case (and like everybody in OJ), she's in theatre.  The audience comes for the entertainment and stays for the entertainment and goes away happy.

But don't let the point slip away from you here.  Yes, Judge Judy is entertainment. But one thing we want out of our judges is entertainment.  Or more precisely: we want the judge not merely to decide, but to announce, to declare, to point with pride, to view with alarm, to give judgment, like the volcano in the old Tom Hanks movie.

So add a (I guess) seventh to my list of qualities.  Do I get it?  Not quite it, but it's there like infant baptism and Monday night football and a lot of other things I don't get.  Might as well learn to I've with it.

Footnote:  It was this guy.

Posner 1, DeLong 0

I don't suppose I expected ever to say this: Judge Richard A. Posner is entirely correct sand Professor J. Bradford DeLong is dead wrong.  The topic is the activity of judging and in particular the Crawford voter ID case, and in particular, Judge Posner's refreshing and candid admission that he got it wrong.  And more generally:

We judges and lawyers, we don’t know enough about the subject matters that we regulate, right? And that if the lawyers had provided us with a lot of information about the abuse of voter identification laws, this case would have been decided differently.

And in response, DeLong:

SHORTER RICHARD POSNER: IT'S NOT MY FAULT I DIDN'T DO MY JOB AND VINDICATING RIGHTS I AM SUPPOSED TO--IT'S THE LAWYER'S FAULT.

Well, let's start by setting aside the non-essentials. One, it's a rhetorical flourish to paraphrase Posner as saying he "didn't do my job." He didn't say he didn't do his job; he just said he got it wrong. Two (corollary), it's not his job to get it right, because that kind of exaction isn't available this side of the grave. A decent judge certainly wants to get it right and tries his damnedist to get it right. But perfection isn't available this side of the grave and it's refreshing to find a judge ballsy candid enough to say so.

So move on to the main event.  Was it Posner's job to suss out the rights here?  Or was it the job of counsel?  A pert answer would  be: of course it is the job of counsel--that's why they are there.  And indeed it is why they are there: to advocate, but also to advise and instruct the judge--the judge who, by necessity, is being pushed in all kinds of directions by all kinds of pressures and demands.  That's why you have briefs and arguments.  That's why the Supreme Court, say, in a case like Citizens United, say, will roll a case over and invite additional briefing/argument in a case where it feels it hasn't been properly advised.   Anecdote: I overheard the best courtroom lawyer  whose briefcase I ever had the privilege to carry as he cautioned the court "your honor, it is one of the responsibilities of counsel to make sure the court does not fall into error."  That was a polite way of saying 'DAD RAT IT JUDGE YOU ARE JUMPING OFF A CLIFF."  But was true in any event.

Flip the coin.  Not only is it the responsibility of counsel to make its case, there very good reasons for the judge to butt out.  The point  is that any time the judge starts taking his own initiative in the case, he is making himself an advocate: once the judge becomes an advocate, he is no  longer a judge, and when the judge becomes an advocate, then for the opposing counsel, it's two against one. 

That said, I'll grant that every  conscientious judge at least worries about those cases where he feels that counsel is a bumbling idiot isn't doing his job.  But a judge who tries to do counsel's job is putting his own sanity in peril, and inviting real risks into the system.  It was said of Teddy Roosevelt that he wanted to be the bride at every wedding and the corpse at every funeral.  You could easily be tempted to say the same about Judge Posner, who comes close to telling himself (and us) that he really is better than anybody else at doing anybody else's job as well as his own.  Happily and refreshingly, he understands that he, even he, has (and should have) his limits.

 



 

 

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.

More Proof that Lawyers should not Practice "Law and Literarture"

Almost every time a judge offers a literary flourish he gets it wrong.  From today's Wall Street Journal:

"Picture a law written by James Joyce and edited by e.e. cummings," wrote Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia, in a January ruling in a Medicare case.

Link.  I assume the judge thinks he has said something erudite.  In fact I think he has proven that he didn't like English class very much.     Had he paid attention, he would have learned that (though there are plenty of impenetrable passages) the best parts of Joyce are at least as lucid as, say, the New Yorker (private message to the judge: go read "The Dead").    And the only difficult part of Cummings is trying to figure why he left out the capitals.  Anyway, these days Cummings is pretty much junior high school stuff and I doubt the preteens would get equal enjoyment out of the Medicare statutes.

H/T Wichita.   

Kagan's "Experience"

I hear that the Republicans, having no other cards in their hand, are going back to complaining that Elena Kagan doesn't have the "experience" necessary to be a judge. What a crock. At least for this job at this time, the fact is that Kagan has exactly the kind of experience she needs. Translated: for this job at this time, eing a professor is the best possible preparation.

I speak from a tiny bit of experience (!) myself: some years ago, I was a judge for a short time. I was at the opposite end of the food chain: I sat in bankruptcy court. I admit I worried before I took the bench whether I would have the chops for it. I found to my (pleasant) surprise that my responsibilities as a judge played right into my background as a teacher.

Consider: one thing a teacher does is to observe performance and to give grades. Which is exactly what a judge does. One thing a judge does is to read through piles of documents and render decisions. Which is exactly what teachers do. Indeed, students (if they don't like their grades) often complain that law school isn't like "the real world" (whatever that is). I used to think they had a point; having served as a judge, I am less persuaded than I used to be. To the contrary, I tell them, law practice is a lot more like law school then you might think: you'll be getting graded all the time.

I'd go further and say that ironically, a certain kind of courtroom "experience" was probably a lot more relevant down at my end of the food chain than it is up where Kagan will be, in the empyrean heights. Lower court judges preside over trials. Good trial lawyers do have a special skill set. A lot of lawyers aren't especially good at it, and a lot of what the good ones know is not what they leaned in law school. If the judge doesn't know how to stay ahead of a good trial lawyer, the trial lawyer will eat the judge for breakfast (think Lance Ito up against Johnnie Cochran in the OJ case-but then, Ito had experience). I had very little trial experience when I took the bankruptcy bench. Fortunately for me, not a lot of heavy-duty litigation goes on in bankruptcy court (we spent a lot more time reading papers). On the other hand I do remember making a few rookie mistakes precisely because I didn't have the experience (e.g., one day I took testimony from a witness who spoke no English; counsel provided a translator, and counsel had to remind me that I needed to put the translator under oath),

Appellate judges do none of that; so my (and Judge Ito's) "experience" is not really relevant to the case. In fairness , I will grant a small point, though I don't think it is dispositive. Specifically: one thing an appellate judge does is to review the work of trial judges. I suppose you could say that the appellate judge does need enough experience of litigation to get a feel for what the trial judge is up against, so he can understand the constraints when he reviews the record. But this kind of sensitivity probably counts in direct proportion to your closeness to the trial court. By the time you get to the Supreme Court, you're pretty far removed.

I'll grant also that there are a lot of qualities on which I'd like to judge a judicial candidate for which "experience" may be relevant--but now I'm talking about experience in life, not litigation. More generally,exactly what qualities should we look for in a judge? Brain power is, of course, on the list--though for my own taste, pure brain power, while on the list, is not at the top of the list (though brain power may be more important in the Supreme Court, where the appointee will have to go toe to toe with the likes of Roberts and Alito than it would be in a trial court). Beyond that, all he human qualities that we might group together as "character"--an ability to listen, for example; balance; steadiness, predictability; kindness (indeed just in general the older I get, the less impressed I am by brain power and the more by kindness). Oh, and a capacity for hard work: whatever else you can say about being a judge, it's a job, and they can't start without you (here think Micky Mouse in the Sorcerer's Apprentice).

There is at least one other quality essential to good judging which you might not always be able to identify the prior record. That would be an affinity for deciding things. This may sound almost trivial: judges decide, of course you need to be willing to decide. But not all judges have that affinity, and a judge who doesn't like to decide stuff is like a duck with an allergy to feathers: her life is a constant misery, with the enhancement that it is a misery she will impose on others. There are some who don't have it: my impression is that it was a temperamental aversion to decision that drove Charles Evans Whitaker from the high court in 1962. So I that is a legitimate topic for inquiry, but I don't mean to suggest that there is anything in Kagan's record to suggest that she lacks an affinity for decision (and ironically again, when ascended to the Supreme Court, he came with experience as both a trial and an appellate judge).

[As a final aside, that may be one place where a judge's life does differ from a professors. Professors do have to "decide," insofar as they give grades. But on the whole, a professor's life seems so much more remote from decision than a judge's. The great Grant Gilmore used to say that professors are like spies in enemy territory who are never sure that what they are doing is right--or, indeed, whether the guy who hired them is dead. A judge decides stuff every day. Do this, do that. What did you do today, dear? Oh (the old saying goes) we hanged six people and at least four of them deserved it].