A judge's indefinable quality

THE telephone caller was a member of the Governor's Judicial Nominating Council, a lawyer the judge had known for years. The council, the man said, was considering a particular lawyer for a vacancy on the Superior Court. ``What can you tell me about her?'' Having observed the prospective nominee in several trials, the judge had formed a complete and favorable opinion of her legal abilities, her intelligence, her energy, her integrity, and her skill at handling complicated issues. In short, as he told the caller, he thought her an outstanding laywer who would make a superb judge.

``Well, I'm glad to hear that; it squares with what others have said. Now, do you think she has judicial temperament?''

Smiling and grimacing simultaneously, the judge assured his caller that the prospective colleague was as blessed with judicial temperament as she was with the other prerequisites for success on the bench.

His facial reaction did not proceed from any doubt as to the accuracy of the evaluation he had given. Rather, it reflected the judge's realization that every discussion of any judicial candidate inevitably involved an analysis of the individual's possession (or lack) of judicial temperament.

Yet each time, the judge knew, and was aware that everyone else knew, that the term completely lacked any intelligent definition. Here, then, was a characteristic universally regarded as so absolutely essential that its absence would instantly doom any chance of elevation. But no one could say what it meant.

Should we be content to say of judicial temperament what the late Justice Potter Stewart of the United States Supreme Court once wrote about pornography: ``I can't define it, but I know it when I see it''?

Somehow, the judge thought, we can do better than that. Surely a working member of the bench ought to be able to describe the essence of his profession.

Out in the courtroom, watching the jury file in, ready to resume hearing evidence, the judge realized that the ingredients most people would associate with judicial temperament would probably include the very characteristics that a lay person should have when sitting as a juror.

Patience, the willingness to hear the full case, as proffered by each party.

An open mind, a willingness to decide the case without preconceptions, entirely on the merits.

Courtesy, that is, paying attention to what was going on.

Fairness, deciding the case according to the rules.

Beyond that, a judge has the further obligation to conduct the proceedings in a manner which not only does justice, but which appears to do justice. The judge must somehow manage the hearing (and the courtroom itself) so that participants and onlookers come away with the feeling that win or lose, each party has been fairly treated. Judicial temperament is the art of projecting fairness.

Implicit in that art is the need to avoid any appearance of a rush to judgment, or even undue pressure on the attorneys conducting the trial. Yet a judge also has a public obligation to conserve two scarce resources: the time that citizen-jurors are required to take away from their own matters and the time that the court system has for resolving disputes.

It is the way that a judge deals with those twin evils, haste and waste, that finally decides whether the court's temperament is indeed judicial.

As the trial resumed, the plaintiff's lawyer was continuing his examination of the defendant, an exercise on which he had already spent the better (or worse) part of two trial days. When the case started, the judge, relying on what the lawyers had assured him, had told the jury the trial would take five days. Already, largely because of the general sloth and unpreparedness of all counsel, the case had taken six days, with at least four more days a certainty.

Some of the jurors had sent notes (which the judge duly showed to counsel) asking when the case would end. Moreover, the clerk reported that counsel in the next case had said that further delay would cause the absence of a vital witness, thus necessitating a postponement.

Feeling the pressure from all directions, the judge wondered how he could pacify the jury, do justice in the next-scheduled case, prod the attorneys now before him, and still maintain what he liked to think of as his judicial temperament.

Hiller B. Zobel sits on the Massachusetts Superior Court.