The Adversary Judge: The Experience of the Trial Judge
MARVIN E. FRANKEL District Judge, U.S. District Court, Southern District of New York
There is an unhappily wide consensus that excellent trial judges are not in long supply. Among the causes are (a) the difficulty of knowing in advance who will turn out to be a good judge, (b) disagreement concerning the most effective means of selection, and (c) given our ambivalence on this as on other subjects, our lack of steady determination to do the things necessary--for example, to stop using judgeships for patronage--to select the people most likely to be most suitable.
While we fail too regularly to people the bench ideally, the ideal is not itself very uncertain. We can state with a substantial consensus the qualities we desire in our trial judges. The trial judge ought to be neutral, detached, kindly, benign, reasonably learned in the law, firm but fair, wise, knowledgeable about human behavior, and, in lesser respects as well, somewhat super- human. Here and throughout, especially as the discussion grows more concrete and specific, the vision I have in mind is the judge presiding over the trial by jury of serious criminal cases, which is perhaps the crucible model and the one in which our failures are most frequent and notable. Responding to our tradition of judges as variable individuals--contrasting with the European continental goal of the standard, uniform, more predictable but perhaps less colorful judge--JudgeBernard L. Shientag, in a well-known lecture, defined the qualities in terms of "the personality" of the trial judge. He listed, and enlarged upon, the eight "virtues" of independence, courtesy and patience, dignity (but not excluding humor), open-mindedness, impartiality, thoroughness and decisiveness, an understanding heart, and social con-