A word about “judicial temperament.” One of the memes of Democrats and liberal commentators in yesterday’s Judiciary Committee hearing was that Judge Brett Kavanaugh, by angrily responding to charges that he committed sexual felonies, was showing that he lacked “judicial temperament.” The general theme was, how can he judge fairly if he flies off the handle?
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Judicial temperament is indeed important—for trial judges. They must deal personally with litigants and criminal defendants, almost all of whom are not experienced lawyers. They must deal with lawyers who may have little experience trying cases. They have to deal with jurors, lay persons by definition (though lawyers can serve on juries, as I have three times). Trial judges need to stay in command of the proceedings and, usually, to maintain a calm, disciplined atmosphere. They should be careful not to lose their tempers. They need judicial temperament.
Appeals judges don’t. Judges on appeals courts—which Kavanaugh is and will continue to be if he is confirmed—don’t deal with the general public. They deal personally only with lawyers, whose clients may sit in the courtroom but never, or only very rarely, participate in the proceedings. It doesn’t really matter if they lose their temper.
Appeals courts can function tolerably well even with very nasty judges. Justice James C. McReynolds, appointed in 1916 by President Woodrow Wilson, reportedly did not speak to Justice Louis D. Brandeis, also appointed in 1916 by President Wilson, in their 23 years together on the Supreme Court. When Justice Brandeis resigned in 1939, Justice McReynolds did not sign the letter in which the other members of the Court praised Brandeis for his service. You can look it up in the Supreme Court Reports.
Evidently McReynolds wouldn’t speak to Brandeis because he was Jewish. But he was disagreeable to other people as well. He was expelled from the Chevy Chase Country Club, which I doubt had many Jewish members at the time, for disagreeable behavior. He seems to have had something like the opposite of judicial temperament.
The Court, perhaps sometimes uncomfortably, and the nation survived. Over the past couple of decades, the word has been that members of the Court have gotten along very amicably. The friendship between Justice Ruth Bader Ginsburg and the late Justice Antonin Scalia is well known and celebrated. There is no justice like McReynolds and no longstanding feud like that between President Franklin Roosevelt appointees Hugo Black and Robert Jackson.
The judicial temperament argument is pure makeweight, a media meme which tells us nothing more than that most mainstream media operatives don’t want to see Republican nominees serve on the Supreme Court.
