Judicial character (and does it matter).

• Author: Horwitz, Paul

CONSTITUTIONAL CONSCIENCE: THE MORAL DIMENSION OF JUDICIAL DECISION. H. Jefferson Powell. (1) University of Chicago Press. 2008. Pp. x + 149. $22.50 (cloth).

HOW JUDGES THINK. Richard A. Posner. (2) Harvard University Press. 2008. Pp. 387. $29.95.

JUDGMENT CALLS: PRINCIPLE AND POLITICS IN CONSTITUTIONAL LAW. Daniel A. Farber (3) & Suzanna Sherry. (4) Oxford University Press. 2009. Pp. xv + 201. $29.95 (cloth).

1. INTRODUCTION

   The three works under review in this Essay cover a wide variety of approaches to thinking about and describing the task of judging, in its ideal and not-so-ideal states. Even so, they reflect only a sliver of a vibrant and burgeoning academic literature analyzing and assessing the nature of the judicial function. (6) The questions they ask, and even some of the answers they provide, are hardly new; in many respects, we all stand in the shadow of Benjamin Cardozo's grand work on this topic, now approaching its ninetieth anniversary. (7) Thanks to interdisciplinary work drawn from political science, psychology, behavioral economics, and other fields, however, the work on this subject has approached a new level of sophistication and a fever pitch of interest. Today, more than at any period since the first flush of legal realism, judges stand at the bar of judgment, by their peers and themselves. (8)

   Each of the books discussed here approaches the subject of judging, and the question of what constitutes the proper nature and role of judges, in a different spirit, whatever common features they may happen to possess. H. Jefferson Powell's book, Constitutional Conscience: The Moral Dimension of Judicial Decision, offers what its title suggests: a moral account of judging, focusing particularly on constitutional interpretation, that describes the ideal judge in terms of the virtues that should be embodied in his or her work.

   In How Judges Think, Judge Richard Posner, who figures as a foil in Powell's book (Powell 3-6, 9-10, 91, 107), provides a far less idealistic account of judging, one that is based substantially on empirical studies of the judicial task and that describes judges rather less romantically as being driven by the incentives of a highly specialized job market. Although Posner too has a judicial method to offer--pragmatism--it is not nearly as romantic a vision of judging as Powell's, and the book on the whole is a typical Posnerian soak in the acid bath.

   Finally, Daniel Farber and Suzanna Sherry, in Judgment Calls: Principle and Politics in Constitutional Law, attempt to split the difference between Posner and Powell. Like Posner, they offer an account of judging, again focused on the Supreme Court's role as constitutional interpreter, that draws, albeit lightly, on empirical work on the judicial role and promotes a pragmatic approach to judging. Like Powell, however, there is a distinct air of idealism to their conclusions, and they too draw on a list of virtues that they argue should characterize the work of the courts.

   What all these disparate visions of the judicial role arguably have in common is a focus on what I will call the role of judicial character. How to define judicial character at all, let alone how to define and spot good judicial character, is, of course, itself a difficult question. "Character" in a broad sense can mean nothing more than the "assemblage of qualities that distinguish one individual from another." (9) Whether there is such a thing as a distinctly "judicial" character even in this narrow sense can be controversial. Posner, for example, suggests that "no general analytic procedure distinguishes legal reasoning from other practical reasoning," that judges by and large engage in "ordinary, everyday reasoning" rather than something distinctive (Posner 248). Still, even denying the distinctiveness of judicial character can serve to put the question of character at issue. In a sense, then, all theories about the nature of the judicial role must begin by asking whether there is anything special about judges and judging.

   One way to begin to answer these questions is to draw on a stronger conception of judicial character--a virtue-centered, or "aretaic," approach to character. The aretaic approach does not simply ask what (if anything) makes judges distinct but is concerned instead with what makes good judges distinct. In this sense, "[w]hen we speak of a moral virtue or an excellence of character, the emphasis is not on mere distinctiveness or personality, but on the combination of qualities that make an individual the sort of ethically admirable person he is." (10) In various ways, that is the concern of each of these books: identifying the character traits that distinguish the admirable, excellent, or virtuous judge.

   Happily, we have tools at hand that might help us to consider this question in a more thoughtful and detailed way. The revival of virtue ethics in philosophy has begun to make its way into legal theory, and with it, we have seen a slowly increasing interest in "a virtue-centered theory of judging--an account of adjudication based on a theory of judicial excellence." (11)

   This approach is not without its dangers or limitations. Substantively, the kinds of virtues that such an inquiry usually comes up with in considering the judicial role risk being so abstract or bland as to deprive them of any meaningful guidance and do not contribute anything we would not already have heard in what Posner aptly calls "the loftiest Law Day rhetoric" (Posner 1). Or the aretaic account may be treated as leading to a thick view of what judicial character demands; the thicker the account, however, the more likely it is to be controversial.

   Descriptively, one has reason to worry about the value of an aretaic approach if the judicial virtues, so identified, are simply too unrealistic. A theory of judging, or of judicial excellence, may be so unrooted from the actual practices and incentives of judges that it becomes nearly mythic--a sort of Easter Bunny for lawyers.

   Of course, a virtue-centered account of judicial character might be an ideal or benchmark rather than being assumed to describe any particular judge. (12) But if this account is too normative and not descriptive enough, and if it fails to capture the actual moves made by judges and the reasons for their moves, the gulf between "is" and "ought" will threaten to capsize the project. (13) Descriptions of even virtuous judging must not fail to take into account what Frederick Schauer calls "the inglorious determinants of judicial behavior." (14)

   In this Review Essay, I use the books under review, supplemented by a dose of aretaic jurisprudence, to attempt to thread the needle between the "is" and the "ought"--between the worldly, post-realist, post-interdisciplinary view of the judge that features in books like Posner's and, to a much lesser extent, Farber and Sherry's, and the more idealistic vision of judicial character represented in Powell's paean to "constitutional conscience" (and, again to a lesser extent, in Farber and Sherry's work).

   I should acknowledge up front that this goal will remain at least partly unfulfilled. There simply is a gap between what we might want to believe about judging and the actual task of judging, let alone the performance of that task. One may thus leave this Essay with a sense of being caught between the judicial world that one wishes existed and the one that actually does exist. (15) Still, I will argue in this Essay that it is possible to bridge the gap--a little. We can do so largely by taking the accounts of the real world of judging as a given reality, and working within the internal and external constraints on judges' roles and motivations to find gaps and crevices in which a more idealistic conception of judicial character might take root and even thrive.

   The Essay proceeds as follows. Part I provides an introduction to the renewed empirical and theoretical interest in judicial role and character, and summarizes some of the dominant approaches to these subjects. Part II offers a descriptive reading of what each of the authors of the books under review contributes to these questions. Part III builds on this descriptive account by offering a more critical assessment of these books.

   In Part IV, I ask whether it is possible to split the difference among these books in a more detailed and thoughtful way, by asking what virtue ethics might add to our understanding of judicial character. In doing so, I also necessarily ask whether judicial character actually matters. It will come as no surprise by now to say that I conclude that it does. But how it matters is a complicated question with many implications for a sound understanding of the judicial role and judicial character.

   Ultimately, the vision I offer involves a mix of the descriptive and the normative. To say that judicial character matters, and that it makes sense to think in terms of judicial character and judicial virtue, is as much or more an "ought" than an "is." I argue, however, that there may be ways to bridge the distance a little between the two. One important vehicle for doing so is a renewed focus on the judicial oath as a means of understanding the role that judicial character might play in a sound understanding of the judicial role. That approach might itself seem romantic or quixotic: do judges really spend much time pondering their oaths? I argue, however, that the oath might be a means of using the internal and external constraints on judging considered by Posner to bring us somewhat closer to the conception of judicial virtue advanced by Powell.

1. THEORIES OF JUDGING: A FIELD GUIDE

   As Frank Cross has recently observed, the prevailing approaches to understanding the judicial function often reduce to two antagonists: "the legalist theory of formalist decision-making and the attitudinal theory of political decision-making." (16) In its strongest form, the legalist model is often...