Burt Roberts was called the toughest DA in New York before he became a judge in the Bronx.  When you were in his courtroom, he would make sure that one thing was absolutely clear, that he was the best lawyer in the room.  Whether or not that was true, there was no purpose in disputing the point.

At PrawfsBlawg, Tun-Jen Chiang asks why we want judges to be great lawyers.

In the rhetoric of judicial nomination fights, two things that just about everyone agree on are: (1) judges should be great lawyers, and (2) judges should not engage in results-oriented decision-making, that is, they should not first come to a predetermined outcome based on extra-doctrinal considerations and then dress up that outcome in legalistic mumbo-jumbo.

But it seems to me that the very definition of a great lawyer is someone who can take a predetermined outcome based on extra-doctrinal considerations (my client should win because he is paying me), and dress it up in legalistic terms in the most persuasive manner.  Sure there are other attributes associated with a successful lawyer, but the ability to twist legal doctrine to reach your client’s desired result seems to be the defining trait.

Putting aside quibbles about this peculiar definition of a “great lawyer,” reduced to the person who is most persuasive no matter how wrong or disingenuous, and which subsequently confuses “successful” with “great,” the question remains why we assume that the attributes that make someone a great lawyer are the same attributes that make someone a great judge.

One reason to have judges be great lawyers is that they would then be able to call out the lawyers who appear before them for doing this.  This is rather akin to having the best thief in the world design your safe.  But if you get a thief to design your safe, you better make sure you have some way of controlling him afterward.

This is what made me immediately think of Burt Roberts, as he relished ripping the lungs out of lawyers who made ill-conceived or frivolous arguments, proving conclusively that he was smarter than them.  There were times when it was fun to watch Burt emasculate some clueless dope, and there were times when it was like watching a kid pull the wings off flies.

Do we really want judges to be “great lawyers?”  To some extent, we do, but not because we believe that great lawyers make great judges.  Rather, we attribute skills and abilities to great lawyers that we believe to be applicable to excellent judicial performance.  We assume great lawyers are smart, knowledgeable about the law, excellent at issue spotting and capable of discerning a valid argument from fluff.  These are merely assumptions, but it’s not too much of a stretch.

But it’s not really clear that we do want great lawyers to be judges. Other aspects of what we seek in a judge is fairness, impartiality, appropriate temperament and enormous self-control.  On the other hand, there are attributes of great lawyers which can prove terrible in a judge, raging ego being a prime example.  No great lawyer can function without the ability to believe that he alone is right even if the rest of the world is against him. 

It appears from Chiang’s framing of the question and explanation that he’s vastly oversimplified the issue, and doesn’t have a firm grasp on what lawyers do.  Do lawyer merely take their objective and “dress it up in legalistic terms in the most persuasive manner?”  Sometimes, but that’s hardly a fair description of the job. 

In a comment to the post, Orin Kerr attempted to unravel Chiang’s confusion:

“The ability to twist legal doctrine to reach your client’s desired result seems to be the defining trait [of a lawyer].”

I disagree. I tend to think that the defining trait of a good lawyer is the ability to get an accurate sense of the strength and weaknesses of various legal arguments. It’s true that a lawyer must then go on to use that skill to develop the strongest case for his client, but that’s a use of the skill, not the skill itself.

Chiang responded:

Orin, that is a pretty metaphysical distinction. To use my thief analogy, it is like saying that the defining skill of a good thief is the ability to get an accurate sense of the strength and weaknesses of a safe’s defenses, and that a thief then only uses that skill to a particular end. It is true enough. But it doesn’t take away from the fact that we seem to want to pick the very people as judges who have devoted their entire careers to practicing something (making results-oriented legal arguments regardless of whether they believe those results to be the most faithful deduction from doctrine) that judges are not supposed to do.

While Orin’s explanation may be “pretty metaphysical,” it’s right on target.  Great lawyers use their skills for a particular purpose, to zealously represent their clients, because that’s their mission.  It’s not because they’re incapable of distinguishing between the work they do and the position they would take if they had no horse in the race.  This is a primary attribute that allows the great lawyer to develop a winning argument even when his cause may be questionable, recognizing the weaknesses of his position and finding viable ways to deal with them. 

This is one of the fundamental distinctions between zealots and great lawyers.  Where the zealot is incapable of understanding that his arguments are unpersuasive to anyone who fails to share his view, the great lawyer comprehends that his job isn’t to be “right” in some philosophical or political sense, but to be persuasive to the decision maker.  The great lawyer uses his skill to achieve the desired end, but doesn’t delude himself into believing that just because he makes an argument that he sits at the right hand of God.  The great lawyer knows only too well that sometimes he’s dead wrong, but still has a job to do.

Far too many judges take the bench to impose their vision of right and wrong, certain that they know what justice is and, given the power of the robe, intend to ram it down the throats of everyone who stands before them.  To demand that judges achieve some sort of true impartiality is a bit naive, as judges are people too, bringing their prejudice and sensibility to the job.  They may be wise (or not), but that doesn’t mean they’re an empty vessel, devoid of feelings, bias, understanding of the world and life from their unique personal position.  We’re all that way.

But the great judge, like the great lawyer, recognizes this in herself, and understands that the function has to be separated from their impulse to impose their view of right and wrong on the world.  The great lawyer may be capable of crafting a brilliant argument to support his cause, even though there may be valid, perhaps even stronger, arguments against him.  He does so and still, in his heart and mind, is fully aware of the flaws in his position.

The great lawyer who can appreciate the failings of his argument, and yet remember his duty to zealously represent his client, has the skills to be a great judge. The great lawyer understands why he does what he does, and doesn’t confuse his duty with his personal philosophy.  Whether that’s how, should he put on the robe, things turn out is another matter. 

Still, we are likely a lot better off having someone with the attributes of a great lawyer on the bench than the alternative.