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What is judicial temperament, and why is it important?

Posted by Scott M. Peterson | Oct 04, 2018 | 0 Comments

Several years ago, I was in court for a conference (unlike what you see on television, much of what happens in court happens in a judge's chambers, between the judge and the attorneys).  It was scheduled to start at 9am.  I'm the type of person who tends to show up at 8:45 for a 9am conference, so I was there, waiting.

The judge called the case into chambers, but the other attorney, who was from a firm in New York City, had not arrived.  We sat in the judge's chambers and waited for maybe 2-3 minutes; 5 at most.

The other attorney came running in, apologizing profusely to the judge.  He explained that he had left his house at 5:30am, but that there was an accident leaving the city.  The judge looked at him, blinked, then told him to go back to his office, as he was rescheduling the conference because the attorney was late.  By three minutes.  The judge did this not because he had to, but because he could.

The phrase “judicial temperament” has been thrown around quite a bit recently, mostly in the wake of the Kavanaugh hearings.  As I write this, some 650+ law school professors have written an open letter to the Senate, stating that they do not believe that Judge Kavanaugh has the judicial temperament to sit on the Supreme Court.

Say what you will about the hearings (assuming you watched, or at least read about them); maybe you believed the accuser, maybe you believed the Judge, maybe you thought they were both lying.  Personally, I think each of us is capable of listening to the testimony and forming our own opinions, whether I agree with them or not.

As a trial lawyer I believe that I have a perspective that might be different from the average viewer.  I truly appreciate the deference given to judges at all levels of the judicial system; from local Town Court Judges all the way up to senior level Appellate Judges.  Across the board, the lawyers and litigants who appear before them tend to give judges a level of deference rarely otherwise seen in society.

This deference, in part, provides judges with their power.  I had a professor in college who would say that judges were “naked beneath their robes” – meaning that their power comes not from force, but from the deference and respect that society gives them.

When judges behave in a way that is demeaning, threatening, dismissive or otherwise unfair, they are abusing the power with which they are cloaked, and by doing so they are damaging the foundation of the system. 

The legal system is predicated on a sense of fairness.  The idealistic version of this says that if you have a legal problem, you are entitled to have an impartial judge and a jury of your peers oversee your case.  When judges are viewed as abusing power, or lacking the temperament necessary to act impartially, the sense of fairness, of justice, disappears. 

So, the notion of judicial temperament is an important one.  Not just for litigants in front of the Supreme Court, but for society as a whole.  Let's hope that in this era of radical partisanship, we can remember that.

About the Author

Scott M. Peterson

Scott M. Peterson is the founding partner of D'Orazio Peterson, having left a partnership at a large regional law firm to limit his practice and focus on helping people protect their families.


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