Judging judges:

Humility the most important qualification

By Joseph Glantz

William Penn  - to whom the wolrd owes the right to trial by jury

As Sonia Sotomayor’s nomination for the U.S. Supreme Court heads towards evaluation and as local county and state races include elections for judges, the question “what qualification do you want in a judge?” is relevant.

The right says that they want judges who are not only neutral but are strict constructionists. The left says that ideology should be taken into account and that the courts should have some “proper” balance of “makeup.” Where necessary, courts should legislate.

H.W. Brands, in an old CSPAN interview, remarked that the Founders of the Constitution had just fought a battle to overthrow a government where they would have been put to death if they lost. They had just seen the Articles of Confederation fail in less than a decade. Even after they drafted the Constitution there was a clamor for the Bill of Rights. So the idea that these Founders would have thought to themselves that change (of the Constitution) is a bad thing flies in the face of the facts.

The American system of government is a system of checks and balances and one of the underlying balances is that sometimes legislators and executives are afraid to do something because of fear of alienating the voters even though they know the voters are wrong. The strongest manifestation of a judicial correction has been in the area of race where even arch-conservatives like Newt Gingrich admit respecting the rights of different races, mainly African-Americans, was not the Republicans’ finest hour. Nor Southern Democrats.

Liberals think these checks should be more pro-active; that where there is a wrong the courts should correct it even before the wrong has been given a thorough review or where there are reasonable differences of opinion as to a remedy. For liberals the courts are the first resort of redress when they should only be a check and a balance, not a plan of action.

As for neutrality, we shouldn’t want judges to be computers. Litigation involves people and in most cases the role of the courts are to decide, as Melville’s, Bartleby the Scrivener story tried to show, what are the proper boundaries between civilized and uncivilized behavior: between respecting differences and people who are different while also respecting the will and rights of the majority. Computers can’t understand these boundary issues, because even with artificial intelligence, human emotions are involved in many of these disputes.

William Penn understood human emotions. The world owes the right to trial by jury to Penn who was jailed for his beliefs and challenged the judicial system to overturn a verdict by a judge which did not respect the decision of his jury. Penn wrote that “Where wisdom has wit to express it – now there’s the best orator.” The point being that issues are more than just practical decisions based on knowledge. There is some need to understand that disputes have a human element. Computers don’t have wit.

Every judge brings his or her own set of biases to dispute. Some may be liberal/conservative biases. Others may be the bias of a specialist vs. a generalist, a plaintiff’s lawyer vs. a defense lawyer or a corporate vs. individual viewpoint.

So how do we choose a judge who brings the right set of checks and balances to their own decision making processes? The most practical of men, Benjamin Franklin had the answer. Franklin, in his autobiography, wrote of the 13 core elements that one must have to lead a successful life. Well, he wrote 12 and then recognized that setting forth a prescription for human success was a little un-human. His 13th element was humility.

Ask most people what they want from a judge and most people would say – I want him/her to listen. But listening requires setting aside one’s biases. Listening requires the humility to put aside bias and begin each case anew.

Philadelphia Judge Curtis Bok used to write a column for the Philadelphia Shingle. In one story he wrote how a judge was able to determine whether the defendant before him was credible by looking at his hands. When he lied he put his hands in his pockets. When he told the truth the hands were visible. That’s not a liberal or conservative viewpoint. That’s not a neutral viewpoint. It’s a human viewpoint and a judge, with humility, is going to be looking at the person and listening to his words. That’s the judge I want deciding my cases.

Joseph Glantz is consulting editor for Wild River Review. His book, Philadelphia Originals, will be published by Schiffer Publishing later this year. This article first appeared in the Bucks County Courier Times.