Selecting and Recruiting the Most Qualified Judges

What are the qualities that should be identified and then sought after in an applicant for judicial office?  The diverse and balanced Special MSBA Committee which researched and deliberated on this question for two years concluded that the judicial recruitment and selection process should maximize the diversity of each Bench not only as to race, gender and ethnicity, but also as to professional background experience and abilities. Under that umbrella, it then concluded that the following qualities should be sought after in all judicial applicants.

1.  Judicial Temperament:  This character trait encompasses both the ability to apply the law to the facts and to understand how a judicial decision will affect the human beings appearing before the court.  It is the ability to communicate with counsel, jurors, witnesses and parties calmly and courteously, as well as the willingness to listen to and consider what is said on all sides of a debatable proposition.

A candidate should exhibit the following aspects of proper judicial temperament: Patience, open-mindedness, courtesy, tact, courage, punctuality, firmness, understanding, compassion, humility and common sense.  Those qualities should be demonstrated consistently.  For applicants who already hold a judgeship, these qualities should have consistently manifested themselves to all the court’s “stakeholders” interacting with the judge regardless of station in life, profession, type of case, representation by counsel or lack thereof.

A judicial candidate should be able to exercise forbearance under provocation, to deal with others with sensitivity and without giving offense, and to assimilate data outside the candidate’s experience without bias and without undue difficulty or stress.  A candidate should be able to handle personal stress without unloading on others; he or she should recognize that the position is not only stressful but an official governmental position of public trust, with its business conducted largely in full view; and that criticism and scrutiny are inherent in the position.  Candidates fearful of or uncertain about these aspects of the job should be counseled to reconsider.

2.  Intelligence:  This is the ability to know and apply legal rules, analyses and procedures to different facts and circumstances, and the ability quickly to perceive, comprehend, and understand new concepts and ideas.

3.  Ethics:  There should be no doubt about an applicant’s personal or professional ethics.

As a lawyer, a candidate should have maintained a standard of conduct above the minimum standard set forth in the disciplinary rules and should not have been disciplined by the Attorney Grievance Commission.  A candidate should be aware of and abide by the ethical principles enunciated in the Code as guidance in specific situations.

A candidate should have taken part in continuing Bar activities in the areas of Legal Ethics and Professionalism.

A candidate should have demonstrated a personal standard of ethical conduct that stands out among both the general citizenry and the applicant’s fellow practitioners.

4.  Courage and Integrity:  Legal “Courage” is “the willingness to do what the law requires the judge to do even though the course the judge must follow is not the popular one”.  “Integrity” is not being influenced by the identity, race, gender, political status, wealth or relationship of the party or lawyer before the judge.  More basically it is not doing what the judge knows to be wrong.  A judicial applicant should possess both courage and integrity.

5.  Experience and Education:  Prior professional activities, legal education, teaching, bar activities, and publications are very important.  The type and amount of experience necessary varies depending on the judicial position sought.

A candidate should generally have been an active member of the Bar for at least five years.

A candidate for the trial bench should have engaged in an active courtroom practice and should almost always have had some litigation experience.  Extensive experience in representing clients before administrative tribunals may qualify as litigation experience.  However, non-litigation experience (e.g., teaching, government or corporate counsel background), combined with high ratings on other criteria, particularly intelligence and judicial temperament should not be ignored.

The assessment of specific qualities may properly be weighted where specific attributes are needed.  For example, when a particular Circuit Court might need a judge for its Family Division; a family law background or prior experience as a Master would be especially useful.  Alternatively, a particular jurisdiction might need a judge to assist in the trial of an influx of mass tort, products liability or malpractice cases.  In such an instance, a background as a litigator would increase an applicant’s value.

Education and experience might be defined differently for appellate positions.  For this reason, extra careful attention should be paid when trial court judges apply for appointment to an appellate court. The qualities which have led to success as a trial court judge may not predict equal success at the appellate level.  Appellate judicial candidates generally should have credentials as appellate lawyers, both in brief writing and oral argument.

6.  Suitability to Workload:  A candidate should demonstrate his or her compatibility with the workload of the court.  Those who dislike writing opinions should not be recommended for appellate positions.  Those who dislike traffic cases or domestic cases would similarly be poor choices for the district and circuit courts, respectively.

7.  Continuing Legal Education:  A judicial candidate’s history of attendance at continuing legal education programs should be considered as a good indicator or a person’s interest in remaining current in the law.  This factor is perhaps the best indicator of whether a judge will be motivated to improve his or her knowledge, willing to continue with his or her “legal education” and be open to new ideas, evolving attitudes, legal developments, and change in general.

8.  Ability to Communicate:  This is the ability to express oneself clearly, concisely, and grammatically, whether orally or in writing.  It includes the ability to listen.

All judicial candidates must have strong oral and written skills.  Candidates for appellate position require superior writing skills. A candidate for the trial bench must be able to express him or herself well both orally and in writing.

Chief Judge Robert M. Bell has emphasized the need for judges to communicate not just in the courtroom but also in the communities in which they serve and to the other branches of government.  While not every judge must be a skilled and articulate public speaker, at least some should be.

9.  Civic and Professional Responsibility:  This is contribution to the public and the legal profession through organized Bar and non-Bar service organizations, volunteer activities, civic and cultural organizations.

A candidate should receive favorable consideration for his or her pro bono, public service and or professional activities.

10.  Health:  A candidate should be in sufficient physical and mental health to perform the duties of the office, such that he or she will be able to render vigorous and effective service for the foreseeable future.  A prior history of stress-induced illnesses, migraine headaches, chronic fatigue syndrome, or poor attendance in the present job should be warning flags and a candidate having such a background should normally not be nominated, as the ability to tolerate conflict, pressure, and stress are essential.  The Attorney General’s Office should be requested to advise the Nominating Commission on how to harmonize these goals with the Americans with Disabilities Act.

11.  Character:  This most important overall quality is a key intangible.  The applicant should be of the best character.  He or she should have a positive reputation in every professional and residential community.  His or her background should be free of references to immorality or indiscretions.  He or she should be free of a history of substance abuse or substance dependence, and free of indications domestic violence, publicly unacceptable conduct and the like.  Candidates should be financially stable.

How do we insure that the men and women we nominate and who the Governor appoints to the Bench possess these ‘not so easy to detect’ qualities?  What effect do elections and politics have on our ability to do so?  Further discussion in two weeks.

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