(What We Talk About When We Talk About) Judicial Temperament

Abstract

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 either present a laundry list 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 have. Resting so much—selection, evaluation, discipline, even removal—on such an indeterminate concept is intellectually and practically intolerable. 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 our discourse on judicial temperament. This Article—the first extended scholarly treatment of the topic—posits that, because judicial temperament is a psychological construct, we ought to draw upon psychology to understand it. It therefore taps a deep well of scientific research to construct a new psycho-legal theory of judicial temperament. It conceives 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 of a judge’s temperament are positive emotionality, negative emotionality, kindness, and self-regulation. The combination of these traits determines how well or poorly her temperament will fit with any given judicial assignment. Although judicial temperament is somewhat malleable, potential for change is constrained. This scientifically grounded theory shows why some seldom-mentioned attributes—like courage—are temperamental, and other commonly-cited ones—such as commitments to equality and diversity—are not. This Article provides a principled alternative to the folk-wisdom manner in which judicial temperament traditionally has been defined and assessed. Setting the theoretical terms for empirical testing of its claims—and with the potential to transform processes for judicial selection, evaluation, and support—the psycho-legal theory posited here shows what we should be talking about when we talk about judicial temperament.