Making progress the old-fashioned way.

• Author: Burbank, Stephen B.
• Position: Tribute to Judge Edward R. Becker, Third Circuit Court of Appeals

It has been my pleasure to help the editors of the Law Review put together this set of tributes to a remarkable judge, and it is my privilege to add a brief introduction. Mine is the easy task, not only because I am standing on the shoulders of a distinguished group of thoughtful commentators, but because, as their assessments of the legal contributions of the judge consistently reveal, the qualities and hence the greatness of the judge are inseparable from the qualities of the man. Mining their contributions unearths the same bedrock, which, when assayed, tells us as much about the man as it does about the judge.

In a paper written for an interdisciplinary conference on judicial independence held at the Law School at the end of March, my colleague, Geoffrey Hazard, concluded:

If we assume that judges cannot and should not "simply interpret" the law, then there is an inherent limit to the ideal of judicial independence. In that light, the important question is what else should be looked for in judges beyond technical proficiency, and what should be the mixture of technical proficiency and these other qualities. Benjamin Cardozo in his lectures on The Nature of the Judicial Process set forth as explicit an answer to that question as we have had. And yet Cardozo's explication is Delphic. Perhaps we can do no better.(1) It is thus fitting that, while some of the contributors to this festschrift have explicitly invoked the model of Cardozo when seeking to convey the qualities that make Ed Becker a great judge,(2) all of them have invoked that model, explicitly or implicitly, in describing the qualities that the judge shares with the man.(3)

"Technical proficiency" is an old-fashioned virtue whose purchase is on the wane in academic circles and, I fear, among judges. Brilliance does not require, and may in fact appear to be hindered by, technical proficiency, if by that we mean thorough understanding, and careful attention to the details, of existing legal doctrine.(4) For as Holmes famously observed, "Ignorance is the best of law reformers. People are glad to discuss a question on general principles, when they have forgotten the special knowledge necessary for technical reasoning."(5) Today we might say that Holmes was being charitable, since he assumed that those who insist on "discuss[ing] a question on general principles" once had "the special knowledge necessary for technical reasoning."

The reader of these tributes to Judge Becker's(6) judicial work product emerges with no doubt...