Judicial Character (and Does It Matter)
Horwitz, Paul, Constitutional Commentary
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).
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. …