The Aretaic Turn The ever acute Jack Balkin answers the always intelligent Matthew Yglesias’s argument for mediocrity on the federal bench. Here is a bit of Yglesias’s post:
Law professors seem to take it as just obvious that intellectual brilliance is an extremely important qualification for a judge and then debate as to whether or not said brilliance could be outweighed by really horrendous policy view or something. This whole approach seems wrong to me. Why should we want brilliant judges? Why not bland mediocrities? It seems to me that the lower federal courts, in particular, positively call for bland mediocrities who will adjudicate cases according to statute and precedent without doing much of anything that’s remotely brilliant. Even at the Supreme Court level why should I want a judge who, like Posner and other brilliant legal theorists, has put forward revolutionary new understandings of the law?
Certainly I wouldn’t want stupid judges, but you can be a lot less brilliant than Judge Posner before you become stupid. I think a nice, ordinarily smart guy who got good grades in college and law school but who hasn’t demonstrated much intellectual creativity or daring or cutting brilliance is exactly what we’re looking for. Leave brilliant reconceptualizations to politicians and writers and professors and let the judges just judge away boringly.
Balkin responds:
Good judging also involves more than the ability to figure out who should win. It also requires the ability to state principled legal conclusions in written form that can be useful to other judges and other actors in the legal system. A judge may recognize that the plaintiff should win in a particular case, but may not be able to articulate the reasons for that conclusion in a way that captures the best legal principle for deciding the case, and that distinguishes other fact situations that seem identical but in fact are not. Judges who cannot perform these tasks well may move the law in the wrong direction. People who have mediocre legal minds are usually not as good at articulating the proper grounds for resolution. They often tend to conflate issues or gloss over important distinctions. Law professors tend to think that brilliant legal minds are better at these features of judging than less brilliant legal minds. They are right about that, I think, but there are other important considerations that go into the art of good judging, and as Matthew suggests, we should not assume that law professors are the best at all of the aspects that go into this art.
Well, I think that both Balkin and Yglesias have captured part of the truth:
Balkin is right. Good judging requires the intellectual virtues. Aristotle identified two intellectual virtues, sophia or theoretical wisdom and phronesis or practical wisdom. Good judging requires both of these virtues. Sometimes the law is intellectually complex–think the rule against perpetuities or the eleventh amendment. Moreover, in our system, even trial judges face novel questions of law that require the exercise of the same intellectual abilities as are needed by appellate court judges. But theoretical wisdom is not sufficient. The law must be applied to particular fact situations. Judges need the ability to size up a case and discern its legally salient features. Moreover, judges must manage cases and devise remedies. These tasks require practical wisdom.
Yglesias is right. Read charitably, the real point of Yglesias’s post is not that judges don’t need to be smart, but that they don’t need to be brilliant. And here Yglesias’s post calls to mind the connection between our understanding of "brilliance" or "genius" and creativity. And there is a sense in which we do not want judges to be creative. Why not? Because we want them to display the virtue of justice, which Aristotle understood as fidelity to law. (Let me put his view of equity to the side for the moment.) The virtue of justice requires decision according to the law as it is and not according to the judge’s conception of the law as it should be–no matter how brilliant that conception might be.
This raises an interesting question: are the virtues of sophia (understood as encompassing brilliance) and justice in tension with one another? Are brilliant judges less dedicated to the rule of law? We know that Aristotle would deny that this is the case, at least for a judge who was fully in possession of the virtues. Such a judge would have the virtue of phronesis and would, therefore, be able to discriminate between cases that required judicial creativity and those that required fidelity to law. But is Aristotle right? We live after romanticism, and one of the fundamental assumptions of romantic thought is that genius is inconsistent with conformity. Hence, we have the image of the brilliant judge who casts aside precedent and forges a new legal order using only the brute force of intellect. It is interesting that Justice Holmes, who like Posner approached genius, maintained that the law was not the calling for brilliance. In this post, I have been making what we might call the aretaic turn in legal theory. That is, like Balkin and Yglesias, I am focusing on judicial character–rather than on a decision procedure for judging. For a fuller statement of my views on these matters, see Virtue Jurisprudence: A Virtue-Centered Theory of Judging.