"By and Large, We Succeed"

A judge's defense of judges and their craft

Judges are often rapped both for being too leisurely and for moving too precipitately, especially in cases involving broad social issues. In an address marking his 30th year on the bench, Irving R. Kaufman, chief judge of the Manhattan-based U.S. Court of Appeals for the Second Circuit, offered a defense of the jurist's craft:

What is it like to be a judge? Most of the time it is very satisfying. One enjoys the prestige. Courtrooms contain every symbol of authority that a set designer could imagine. Everyone stands up when you come in. You wear a costume identifying you as, if not quite divine, someone special. Attendants twitter all around. Most striking, at every sitting, at least two highly trained lawyers, whose job it is to talk, who love to talk, allow you to interrupt them whenever you want.

There are negatives, of course. We have been known to get frivolous cases, or splendidly prepared ones that are nevertheless boring almost beyond belief. Also, the system is designed to maximize the judge's anxiety--that he has just made a mistake, or is about to. It is not just that (as the egg sorter complained about his job) it is "decisions, decisions, decisions all day long"; it is that the system is designed to ensure that the questions presented to us are the hardest to resolve.

Seeking a judicial solution to a problem is usually an act of last resort. The judicial system is the most expensive machine ever invented for finding out what happened and what to do about it. When we judges get a question, it is almost always (a) very important, and (b) a tough case that is close enough to drive one mad. Hence the craft is hard.

Much tension accompanies the job of deciding the questions that all the rest of the social matrix has found too hard to answer. But the effort is worth it. For the job of adjudication is to decide those questions according to particular rules and free of the influences that often affect decisions made outside the courtroom. We represent a third value that is not, and is trusted not to be, the prisoner of either wealth or popular prejudice.

This role necessarily imposes limits on the contribution that litigation can make to the cause of lasting social reform. A judge is forever bound to remain detached from the fray, and must resist all temptations to implement his personal vision of the just society--except to the extent that his vision is consistent with the law as it evolves in response to social changes. This self-restraint is the very soul of judicial impartiality. The ideal is to have the losing party feel that he is not the victim of the judge, but simply the object of a process that is the same for all.

This does not always work: judges are not saints, and they are subject to influences that they are not aware exist. But it is the judge's job to try to stand clear, to try not to substitute his aims for those of the people when a valid statute governs an issue, to try to adjust to the reality that richer people often have "better" lawyers. By and large, we succeed.

Thus all the pleasing mummery in the courtroom, all our political insulation, indeed all our power, is designed to support a message: "Whichever side you're on, we are not on your side or your opponent's side; you must persuade us not that you've got money or that you've got votes, but that your cause is lawful and just." That is a role worth fulfilling.

But there are cases where judges must shoulder a still graver burden, for we must preserve the core of our heritage embodied in the Constitution. Our challenge is to pour into these ancient formulations the experience of each generation, to strike anew a balance between the necessities of state and the rights of the individual, between the security of the status quo and the aspirations of our minorities. Our tools are limited to reasoned elaboration, the collective wisdom of our founding fathers and the voice of an aroused conscience. We must strain our hearts and minds to apply the most enlightened human spirit we can muster, and pray that our choices prove to be the just ones.

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