Judicial temperament: Concerns and questions
I began my last column, Truth and the Law, by stating: “This is not a political column.” For reasons that will become obvious, I must repeat this prelude once again. As I watched portions of the Senate Judiciary Committee confirmation hearings for Justice Kavanaugh, another basic legal tenant, the importance of displaying judicial temperament, became a focal point in the debate. Specifically, the importance of this quality for judges at any level, much less on the Supreme Court, came under scrutiny. Does the level of anger or indignation of an accusation excuse conduct that might otherwise be viewed as highly inappropriate, especially from the bench?
I thought back to an article written a couple of years ago by retired Illinois appellate justice, David Sterba, in the Chicago Daily Law Bulletin. Justice Steba began his analysis on the most admirable characteristics of members of the judiciary by quoting Socrates’ description of the essential qualities of a good judge:
“Four things belong to a judge: to hear courteously; to answer wisely; to consider soberly; and to decide impartially.” Justice Sterba continued, “These words remain as true today as they were when Socrates first spoke them more than 2,400 years ago. In sum, not only is a good judicial temperament befitting and required; it is essential to the integrity and honor of our system of jurisprudence. As stated in the preamble of the Code of Judicial Conduct, “[J]udges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system… Good temperament is vital to this endeavor.”
Indeed, in his opening statement on the first day of the confirmation hearings, Justice Kavanaugh observed, “a good judge must be an umpire—a neutral and impartial arbiter who favors no litigant or policy.” So, yes, impartiality was highlighted. But then the hearings began, and as in many litigated matters, the tensions in the room began to rise to a rolling boil. Tempers flared, voices were raised, and accusations flew. Justice Kavanaugh responded in a manner that alarmed many. In the words of University of Chicago Professor and former Dean, Geoffrey R. Stone, writing in the Huffington Post, Kavanaugh’s demeanor in the hearings was “truly shocking, immature, irrational and uncontrolled,” in contrast to the judicial standard of being “calm, thoughtful, open minded, respectful and mature.”
In contrast, conservative commentator Andrew McCarthy argues that rather than situational demeanor, “the best measure we have of how someone will perform in a government office is how that person has already performed when in that office, or in a very similar one. And the best measure we have of the seriousness and good faith of a critic’s claim against a nominee is whether the critic consistently levels similar charges in analogous situations.”
Subsequently, within a couple of days, over 2,400 law school professors penned an op-ed published in the New York Times, noting the historical and current problems with this nominee:
“Judicial temperament is one of the most important qualities of a judge. As the Congressional Research Service explains, a judge requires “a personality that is even-handed, unbiased, impartial, courteous yet firm, and dedicated to a process, not a result.” The concern for judicial temperament dates back to our founding; in Federalist 78, titled “Judges as Guardians of the Constitution,” Alexander Hamilton expressed the need for “the integrity and moderation of the judiciary.” The piece continued, “We have differing views about the other qualifications of Judge Kavanaugh. But we are united, as professors of law and scholars of judicial institutions, in believing that he did not display the impartiality and judicial temperament requisite to sit on the highest court of our land.”
No doubt, the hyper-political nature of the process has led to more contentious confirmation hearings, but as the dust has now settled, and Justice Kavanaugh has been sworn in, what are the lessons learned for judicial selection in this environment? Through what lens do we evaluate not only the qualifications, but also the demeanor of judges in the aftermath of the hearings?
In fact, beginning to answer these questions leads to many more. How should judges now deal with an outraged defendant or his counsel who is combative during a trial? Might the public display viewed by millions on television ramp up unacceptable behavior in the courtroom? Or, will the public merely chalk up the hearing, albeit for the highest court in the land, as merely another example of a political system desperately in need of repair, while maintaining the sanctity of the courtroom as being separate from the nomination process? Has this process diminished the public’s view of the judicial system, and if so, what can we do to alter that perception?
As a section council particularly focused on the subject of civility, we take these questions seriously. In the spring of 2019, we will once again be producing a day-long seminar on the topic of civility, ethics, and related topics. What is clear is that an in-depth examination of this subject has never been timelier as we strive for increased respect for our profession. The time is now to tackle this challenge.
David W. Inlander
Chair, ISBA Bench & Bar Section Council