Wednesday, October 31, 2012

An Homage to Judicial Anger

Public perception aside, one of the most important traits of a judge is what we delightfully refer to as "judicial temperament."  The ABA Standing Committee on the Federal Judiciacy defines judicial temperament as
compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias, and commitment to equal justice under the law.

Nowhere in there does it say well-motivated righteous indignation as reflected by judicial anger.  But then, Vanderbilt lawprof Terry Maroney argues that it is time for a change.  The law review article begins with very short sentence: Judges get angry.

There is no way to avoid the reality that judges are people, and as such suffer from the same frailties as the rest of us. Bias. Anger. Boredom. The aspiration of including judicial temperament as a criterion for the selection of judges is that they will suffer fewer frailties than most.  We may not be able to pick judges who are devoid of the ignoble traits of humanity, but we can try, right?

Legal culture, however, is of two minds about judicial anger. On the one hand, anger could be called the quintessentially judicial emotion. Humans (including judges) feel anger when we perceive that a rational agent has committed an unwarranted wrongdoing; that experience of anger generates a desire to affix blame and assign punishment, and facilitates actions necessary to carry out that desire. This coupling of judgment and action rather precisely describes one core function of the judge. Indeed, we may expect judges to act as society’s anger surrogates, so as to avoid vigilante action. We often rely on them to assign blame, frequently task them with assigning consequences, and always hope they will be motivated to perform these functions.

On the other hand, anger seems to pose a danger to the neutral, careful decisionmaking we also expect of judges. Anger is powerful, and its effects sometimes regrettable; consider the actions of a Florida judge who, "red faced and yelling," left the bench to "physically intimidate" an assistant state attorney. Anger is the prototype for the traditional view of emotion—a view strongly reflected in legal theory—as a savage force that unseats rationality, distorts judgment, manifests in impulsive aggression, and imperils social bonds. Indeed, fear of such irrationality led Judge Richard A. Posner to declare that we ought to "beware . . . the angry judge!"

It's unclear to me whose legal culture Maroney is referring to, but it's surely not mine.  There is no aspect of "legal culture," if that's defined as what those of us engaged in the law desire, that seeks judges to be society's avenging angels, the embodiment of blind rage.  While we ask judges to "affix blame and assign punishment," we do so based on applying the law and achieving its legitimate goals.  What we do not do is ask judges to vent our collective spleen against those we despise.

Sure, the public always enjoys judicial rage, provided it meets with their approval.  If the public hates someone, they applaud the judge who hates them too and lets their hatred come across loud and clear. This judge becomes a public darling for expressing what people feel; it's feel-good law for the benefit of those who enjoy watching those they despise "get what's coming to them."  

But this flies in the face of what judicial temperament is all about.  And Maroney says that's not only okay, and can't be helped, but should be tapped for righteous causes.

Righteous judicial anger rests on accurate premises; is relevant; and reflects worthy beliefs and values.

Where we have traditionally sought to rise above personal anger, Maroney exalts it, provided it comports with "worthy beliefs and values," which by definition are those that we agree with.

Judicial anger at criminal sentencing often can be justified as well, and for a similar set of reasons. By the time of sentencing, blameworthy conduct already has been shown. Assuming, as the judge must, the accuracy of that finding, the judge is entitled to respond emotionally to any harm the defendant has caused. Expressing anger vividly demonstrates to victims and their survivors that they are within the judge’s zone of care. It communicates, in a way that other demonstrations could not, that they are members of the valued community.

It also demonstrates judicial respect for the defendant. As one feels anger only where a human agent has chosen to inflict an unwarranted harm, showing anger reveals the judge’s assessment that the defendant is a fellow human possessed of moral agency. By using his authoritative position to send moral messages to the wrongdoer, the judge ideally frees others in society from feeling a need to do so themselves, including through vigilante action.

Rarely has anyone suggested that the expression of a judge's personal outrage "demonstrates judicial respect for the defendant." Having stood beside more than one defendant being sentenced and subjected to judicial outrage, no one ever told me afterward how much he appreciated the judge's moralistic rant because it reflected respect for his humanity.  In fact, it's never been well-received in my experience.

There is no disputing Maroney's premise that judges are people, and as people, suffer from an emotional bias in the performance of their role.  When they take off their robes, they no doubt have feelings just like the rest of us.

But when they put on their robe, they assume the responsibility of their position. They are no longer entitled to let their personal feelings intrude on the authority they have over others.  It's not that it doesn't happen, but that the goal is to prevent it from happening.  Maroney argues the opposite, that since it happens, we should embrace anger and encourage it to be used for socially desirable ends, which means the ends that we agree with.

The tyranny of the majority is always a popular thing, as it makes the villagers storming the courthouse with their torches and pitchforks feel validated.  The last thing we need is to relieve judges from their obligation to maintain judicial temperament and play to the angry mob.  Will the mob agree with the judge's moral outrage and applaud her righteous indignation?  Probably.  This is precisely what we fight against.

H/T
Doug Berman



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