Judicial Temperament, Explained

Abstract

Judicial temperament is something we think all judges must have: We assess it at all critical junctures of a judge’s career. At the same time, judicial temperament is something no one can quite put a finger on. Most often, we simply list desirable qualities and behaviors without articulating what, if anything, unifies them. Most lists include courtesy, patience, and compassion, but no two lists are the same — and, at the extreme, they capture virtually all aspects of a judge’s personal makeup (e.g., “personality, character, upbringing and education, formative career experiences, work habits, and behavior when interacting with others”). The other approach is to treat judicial temperament as a fundamentally mysterious quality that one does or doesn’t have. For example, when asked whether there was an ideal judicial temperament, the late Justice Antonin Scalia (in his characteristically pithy manner) replied, “If there is one, I don’t have it.” His successor Neil Gorsuch got the opposite — but equally conclusory — assessment, at one point being dubbed “Scalia without the scowl.” Both approaches — laundry list and cipher — do a deep disservice to a critical measure of judicial fitness. Temperament is not everything we look for; we also value intellect, integrity, and adequate legal training. But if we place temperament among our core criteria, we cannot leave its meaning indeterminate.