The Virtues and Vices of a Judge: An Aristotelian Guide to Judicial Selection (original) (raw)
Professor Schauer has gone so far as to suggest that appellate judges need not be lawyers and certainly need not be experienced or excellent lawyers. Moreover, Schauer maintains, the skills and knowledge desirable in appellate judges are not even taught in law schools. 4 Why is Schauer's proposal so novel? Why do we find seemingly absurd the idea that lay people could be excellent judges in general and excellent appellate judges in particular? Why does one want to say that appellate judges, especially Justices of the United States Supreme Court, should not only be experienced in the law, but should be drawn from the ranks of our best and most experienced judges and lawyers? Why does Schauer himself feel constrained to make his suggestions only half seriously? These questions reflect, I think, a strong intuitive discomfort with Schauer's suggestions. Indeed, we may be tempted to underestimate the importance of his suggestions or engage in facile refutation of his arguments. These responses would be grave errors. First, we must resist translating our strong intuitive discomfort with Schauer's suggestions into a belief that they are not worth serious consideration. Key elements of Schauer's suggestion are widely reflected in the actual practice of judicial selection. The University of Southern California Law Center Symposium on Judicial Election, Selection, and Accountability was prompted, at least in part, by the injection of partisan politics into judicial elections. Judges in this country are selected on the basis of politics,' and they have often been politicians or the cronies of politicians. Vermont's superior courts include lay judges. 6 Other legal cultures have adopted some of Schauer's seemingly radical suggestions. For example, in Nicaragua, lay people constitute special courts which try overtly political crimes. 7 In England, lay magistrates have jurisdiction over some imprisonable offenses.' Moreover, the historical roots of the common law tradition lie in a system in which judges were openly the
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