The Virtues and Vices of a Judge: An Aristotelian Guide to Judicial Selection

A core insight of the legal realists was that many disputes are indeterminate. For example, in many appellate adjudications, respectable legal arguments can be made for both sides of the dispute. A contemporary reaction to the realist insight by critical legal scholars is expressed in the slogan Law is politics. This critical slogan might be elaborated as follows: in openly political activities, such as the legislative process or partisan elections, debate centers on issues of value and social vision that are outside the scope of legal reasoning. Judicial opinions merely dress up political decisions in the garb of legal reasoning. The realist insight and critical reaction challenge conventional notions about the selection of appellate judges on the basis of merit-a combination of legal expertise and judicial temperament. If appellate judges really render decisions on the basis of politics, then why should judges be selected (or elected) on the basis of merit? In his essay, Judging in a Corner of the Law, 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