The Download of the Week is Judicial Character (and Does it Matter) by Paul Horwitz. Here is the abstract:
This Essay, forthcoming in Constitutional Commentary, discusses
three recent books about judicial decision making: Richard A. Posner's
How Judges Think, H. Jefferson Powell's Constitutional Conscience: The
Moral Dimension of Judicial Decision, and Daniel A. Farber and Suzanna
Sherry's Judgment Calls: Principle and Politics in Constitutional Law.
It uses them as the foundation for an exploration of the nature and
role of judicial character, or judicial virtue, in constitutional
judging.
All three books have in common the rejection of any single
comprehensive theory of or approach to constitutional judging. What
divides them is the extent to which they focus descriptively on the
"is" of judging or normatively on the "ought" of judging: here, Posner
and Powell represent the respective poles, with Farber and Sherry
located somewhat awkwardly in the middle. I argue that in order for us
to find some livable space between the "is" and the "ought," we must
take the aretaic turn: we must focus on the nature of judicial
character or virtue and what it demands of the judge. Drawing on work
on virtue ethics and virtue jurisprudence, I explore the role of
judicial virtue and its relationship to constitutional decision making.
I argue that the aretaic turn may help us to develop an understanding
of judging that is both consistent with the judicial "is" and
productive of new ways of thinking about the judicial "ought." In
particular, I argue that reflection on the meaning and implications of
the judicial oath may provide a fertile space in which to recapture and
reconceive a normative sense of the judicial virtues without neglecting
the real-world motivations and limitations that act on judges. This
Essay is a prelude to larger work on the relationship between oaths and
the Constitution.
Highly recommended.