Vanderbilt University professor Terry Maroney during a Berkeley Law webinar titled "Judicial Temperament." (Photo: Courtesy Photo)

Temperamentally speaking, what should we be looking for in our judges?

In an academic paper published in the Boston College Law Review last month, Wilmer Cutler Pickering Hale and Dorr litigator-turned-law professor Terry Maroney of Vanderbilt University says that the problem is something of a definitional one: We have two traditional ways of defining what "judicial temperament" is. The first is to set out a laundry list of desirable traits—think compassion, decisiveness, open-mindedness, courtesy, patience, and the like—without saying what, if anything links the things on that list. The other approach, she says, treats judicial temperament as some mystical quality that either a potential jurist has or lacks.

The approaches are "opposite" but both "100% unhelpful" Maroney told Jeremy Fogel, the executive director of the Berkeley Judicial Institute, in a conversation about her research broadcast via Zoom by the institute Wednesday. Maroney's goal, she told Fogel, was to move away from "folk-wisdoming" our approach to the topic and to develop a principled alternative.

"We all think that judicial temperament is a thing, and that it's the thing that a judge must have, but it's the thing that you can't quite get your finger on," said Maroney, who has focused her research on the role of emotion in the law. Maroney said that in her days as a litigator, she was taught that it was imperative on the lawyers to "know the judge" and to know his or her personality.

"If it's something that literally every litigator knows—that the personal makeup of the judge and her habits and her tendencies … that those are critical of not only working with your case but to the development of the law—how is it that every litigator knows that and yet the law pretends that that's not true?" Maroney said.

The "psycho-legal theory of judicial temperament" laid out in her new paper, "(What We Talk About When We Talk About) Judicial Temperament," identifies traits separate and apart from the judge's intellect, training, and ideology that make for candidates capable of putting up with the stresses and rigors of wading into contentious legal fights and making potentially unpopular decisions.

Let's start with what you don't want in a judge, according to Maroney, something termed "dispositional negativity" in the psychological literature. Folks who exhibit dispositional negativity have a tendency toward anger and a tendency toward fear. "In either iteration, dispositional negativity creates a propensity for overreaction to stressors, aversive challenges, and threats; manifests itself in negative feelings even when such stressors, aversive challenges, and threats are remote or absent; and predisposes a person to act in ways that evoke stressors, aversive challenges, and threats to which they then react," she writes in the paper.

She put it a little more succinctly Wednesday. "Every judge gets mad sometimes and every judge should get angry sometimes," she said. It's the judges who tend to perceive a hostile intent in others, and then react to that perceived intent in-kind that we should worry about, she says. 

So what positive traits correlate with a solid judicial temperament? 

The first, Maroney says, is a propensity toward what she terms "calm satisfaction"—people who get good feelings from small accomplishments. Another is exuberance—people she described on Wednesday as being "jazzed" about pretty much everything. But also important in her estimation is kindness. Temperamental kindness is not a grinning sort of niceness, by Maroney's telling, but something rooted in a deeply held belief in the value of other people.

"If you're in a job that kind of presents you very regularly with the worst of the human condition, it's very helpful to go into with a very strong core trait of thinking that people don't suck, right? To think that humanity is basically worth it, right?" Maroney said Wednesday.  

Maroney counselled Wednesday's audience, which included a number of judges interested in probing their own temperamental tendencies, to think of temperament as an envelope of possible outcomes, with some more likely than others. She analogized temperament this way as well: Water vapor can be a billowy cloud or dense ground fog, but not an asteroid. Judges have wiggle room within their temperamental tendencies, she said, especially when it comes to self-regulating emotions to determine what behaviors result from real world encounters. 

Fogel worked alongside Maroney in his prior post as the director of the Federal Judicial Center, the federal judiciary's training arm, to develop a mid-career seminar for trial court judges to help judges develop techniques of emotional self-regulation. 

"If you have the motivation, there are things that you can actually do to change your behavior to align better with who you are and who you want to be." Fogel said.