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THE DARK SIDE: Lack of judicial temperament is like obscenity

By: David Ziemer, [email protected]//July 3, 2012//

THE DARK SIDE: Lack of judicial temperament is like obscenity

By: David Ziemer, [email protected]//July 3, 2012//

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The other day, some of us were discussing “judicial temperament,” or more specifically, we were swapping war stories about the lack of it.

However, we weren’t actually able to define the term.

I suppose that a lack of judicial temperament is kind of like obscenity.

As Justice Potter Stewart wrote about defining obscenity, in his concurrence in Jacobellis v. Ohio, 378 U.S. 184 (1964), “perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”

The sentence is one of the most famous sentences ever written in a Supreme Court opinion.

It is also sheer nonsense. It takes as self-evident that a court is capable of determining what is and is not obscene. But even assuming for the sake of argument that obscenity does exist, no court, no legislature, and no community, is actually capable of such a task.

No individual can even draw such a line.

Remember when you were 18 years old; you were surely much less experienced than you are today.

There are movies that, given your limited experience and imagination, you would have considered offensive enough to be obscene at that age. Today, you would say about the same movies instead, “Some people like doing that sort of thing.”

If an individual cannot maintain a consistent standard of obscenity throughout his adult life, it’s a fool’s errand for a community or court to try.

In contrast, there are certain acts that everyone can agree demonstrate a lack of judicial temperament.

I once had a judge who, while imposing conditions of probation on a childless man for a psilocybin charge, ordered that he take parenting classes if he fathered any children during the term of his probation. This was in addition to ordering too many other conditions for any person to actually perform.

Suddenly, she declared, “No! Strike that! You’re going to take parenting classes whether you have any children or not!” She then declared it was too hot in the courtroom to sentence anybody else that afternoon, and instructed the clerk to reschedule the rest of the cases, much to the relief of all the defendants who were still awaiting sentencing.

Fortunately, for my client, the State conceded error, and the Court of Appeals summarily vacated the entire sentence.

It doesn’t matter whether you have been practicing law for decades, or you are in a courtroom for the first time; everyone can agree that the judge in my case lacked judicial temperament.

Nevertheless, if I had to define it, I would have to admit, like Justice Stewart, that I cannot. Instead, I can only say that I know it when it I see it.


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