(What We Talk About When We Talk About) Judicial Temperament
67 Pages Posted: 1 Jan 2020 Last revised: 2 Feb 2020
Date Written: August 1, 2019
Judicial temperament is simultaneously the thing we think all judges must have and the thing that no one can quite put a finger on. Extant accounts are scattered and thin, and they either present laundry lists of desirable judicial qualities without articulating what (if anything) unifies the list, or treat temperament as a fundamentally mysterious quality that a judge either does or does not not have. It is intellectually and practically intolerable to have so much — selection, evaluation, discipline, even removal — rest on so indeterminate a concept. Polarized debates over Justice Kavanaugh’s fitness to sit on the Supreme Court made clear just how badly we need a common vocabulary to guide what we talk about when we talk about judicial temperament.
This Article — the first extended scholarly treatment of the topic — posits that, because judicial temperament is an essentially psychological construct, we ought to draw upon psychology to understand it. It therefore taps a deep well of scientific research to construct a new psycholegal theory of judicial temperament. It proposes that we ought to think of judicial temperament as a deep-seated, relatively stable set of specific personal traits — separable from intellect, training, and ideology — that, in dialectic with specific judicial environments and the predictable demands of judging, drive behaviors that affect how justice is delivered and perceived. The critical trait dimensions are positive emotionality, negative emotionality, kindness, and self-regulation: the combination of any given judge’s positions on each dimension determines how well or poorly her temperament will fit with any given judicial assignment. While judicial temperament is somewhat malleable, potential for change is constrained and must be affirmatively sought and supported. This scientifically grounded theory shows why some seldom-mentioned attributes — like courage — are temperamental, and why some commonly-cited ones — such as commitments to equality and diversity — are not. It provides a principled alternative to the folk-wisdom manner in which judicial temperament traditionally has been defined and assessed, an undisciplined approach vulnerable to faddish theory and bias.
Setting the theoretical terms for empirical testing of its claims, with the potential to transform systems of judicial selection, evaluation, and support, the psycholegal theory shows what we should be talking about when we talk about judicial temperament.
Keywords: judicial temperament, emotion, law and psychology
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