A recent article in the New York Law Journal pointed out the growing number of vacancies on New York State’s Appellate Division (“Bar Groups Call on Cuomo to Fill Appellate Vacancies,” NYLJ, Oct. 1). Those vacancies will be filled by gubernatorial appointment at some point from the ranks of Supreme Court justices. It is no surprise that there are many aspirants for these vacancies, who will be interviewed by the various screening committees assigned to the task of vetting candidates.
This piece reflects upon important qualities that a good appellate judge should possess.
Commentators who list necessary characteristics for appellate judges often focus first on writing ability and collegiality (see American Judicature Society Handbook for Judicial Nominating Commissioners, cited in Goldschmidt, Selection and Retention of Judges: Is Florida’s Present System Still the Best Compromise?: Merit Selection: Current Status, Procedures, and Issues, 49 U Miami L Rev 1, 29 ).
Interestingly, despite the obvious importance of convincing one’s colleagues, who may view matters differently, the need for working with and convincing others was not discussed by some of the greatest scholars who have written about the appellate lawmaking process generally (see generally Jones, Multitude of Counselors: Appellate Adjudication as Group Decision-Making, 54 Tul L Rev 541, 545 , discussing John Chipman Gray, The Nature and Sources of the Law  and Cardozo, The Nature of the Judicial Process [Yale Univ Press 1921]).
Of course, as a member of a group, the appellate judge more often than not has to compromise in order to produce a unanimous judicial decision.
While writing ability is fairly self-explanatory, the quality of collegiality, which is uniquely critical to the functions of an appellate judge, warrants elaboration; it has been said to involve the ability to understand and respect differing views and be able to give and receive constructive criticism with grace (Goldschmidt, supra, at n. 214).
This emphasis on collegiality comports with the philosophy expressed by Judge Hugh Jones, who said that the appellate process is a pursuit not of individual achievement, but of institutional responsibility to articulate the law (Richard Wesley, Hugh Jones and Modern Courts: The Pursuit of Justice Then and Now, 65 Alb L Rev 1123, 1125 ). Jones said that part of being an effective appellate judge was “the submergence of individual image and status to the good of the Court.”
Often, this is a difficult task, because we all bring diverse backgrounds and experiences to our collegial responsibilities. But, as Judge Benjamin Cardozo noted: “The eccentricities of judges balance one another. One judge looks at problems from a point of view of history, another from that of philosophy, another from that of social utility, one is a formalist, another latitudinarian, one is timorous of change, another dissatisfied with the present, out of the attrition of diverse minds there is beaten something which has a constancy and uniformity and average value greater than its component elements” (Cardozo, The Nature of the Judicial Process, at 177).
A comprehensive list of guidelines compiled by the American Bar Association for all candidates for state judicial office generally applies equally well to appellate judges, and includes integrity, legal knowledge, professional experience, judicial temperament and diligence (see ABA Guidelines for Reviewing Qualifications of Candidates for State Judicial Office [Jud Admin Div 1987]). The critical component of integrity is defined by the ABA as including the ability to speak the truth without exaggeration, admit responsibility for mistakes and put aside self-aggrandizement, as well as intellectual honesty, fairness, impartiality, the ability to disregard prejudices, obedience to the law and moral courage (see Goldschmidt, supra at 30, n. 223).
In an article regarding the qualities of a good appellate judges, four contributors listed literally scores of characteristics, including: impartiality, industriousness, decisiveness, lucidity and rationality, learnedness, loyalty to and understanding of the institution of the court, humility, compassion and dedication, along with integrity, collegiality and writing ability (see Aldisert, What Makes a Good Appellate Judge? Four Views, 22 Judge’s Journal 14 ).
One scholar listed eight ideal traits for a judge: neutrality, fair-mindedness, knowledge of the law, thinking and writing ability, integrity, health, temperament, and the One scholar listed eight ideal traits for a judge: neutrality, fair-mindedness, knowledge of the law, thinking and writing ability, integrity, health, temperament, and the ability to handle power sensibly ability to handle power sensibly (see Goldman, Judicial Selection and the Qualities That Make a “Good” Judge, 462 Annals Am Acad Pol & Soc Sci 112, 113-114 ; see also Abraham, Seventh Annual Address to the Supreme Court Historical Society, 66 Judicature 7  [honing his list down to six lengthy categories]).
Federal appellate Judge Patricia Wald has said that important qualities for an appellate judge include alertness, sensitivity to the needs of the system and one’s colleagues, energy, unselfishness, a sense of history, humility, an interest in the outside world, the ability to make hard decisions, the ability to read fast and lucidly, and a comparable ability to write well (see Wald, The Circuit Bench: A Lonely Job Full of Hard Questions, NY Times March 18, 1988 at B5).
Additionally, compassion should be acknowledged as having a role in the judicial process (see Brennan, Reason, Passion, and ‘The Progress of the Law,’ 10 Cardozo L Rev 3 ; Kaye, The Human Dimension in Appellate Judging: A Brief Reflection on a Timeless Concern, 73 Cornell L Rev 1004, 1007 ).]). As former Chief Judge Judith Kaye explained, we need judges who will “bring the full measure of their experience, their moral core, their every human capacity to bear in the difficult process of resolving the cases before them” (Kaye, supra at 1015).
Discussion of the traits of a great appellate judge may be summarized by reference to the qualities embodied in Cardozo. His particular genius as an appellate judge has been said to lay in a combination of qualities: “first, a well-stocked, orderly and constructive mind; second, a generous openness, a receptiveness to the ideas of others, coupled with exceptional critical judgment; and third, a willingness and remarkable ability to write his opinions in terms that could bring his judicial colleagues to genuine consensus and, far more often than not, persuade the generality of the bar of the rightness of the decision reached” (Jones, Multitude of Counselors: Appellate Adjudication as Group Decision-Making, 54 Tul L Rev 541 ).
The requirement of principled decision-making, is, beyond doubt another worthwhile aspiration and is essential to the credibility and success of appellate judicial functioning (See, generally, Edwards, The Judicial Function and the Elusive Goal of Principled Decisionmaking, 1991 Wis L Rev 837). The judge “must first extract from the precedents the underlying principle, the ratio decidendi, [and] must then determine the path or direction along which the principle is to move and develop, if it is not to wither and die” (Cardozo, The Nature of the Judicial Process, at 28). The neutral application of precedent and the need to convince one’s colleagues on the appellate bench generally serve to prevent judges from deciding cases in a manner that accords with their ideological or partisan preferences (id. at 838). Yet, as Judge Richard Posner points out, “Through self-awareness and discipline, a judge can learn not to allow his sympathies or antipathies to influence his judicial votes, unduly. But the qualification in “unduly” needs to be emphasized. Many judges would say that nothing outside ‘the law’ influences their judicial votes at all. Some of them are speaking for public consumption, and know better. Those who are speaking sincerely are fooling themselves” (Richard A. Posner, Judicial Opinions and Appellate Advocacy in Federal Courts—One Judge’s Views, 51 Duq L Rev 3, 22 [Winter 2013]).
Finally, on the bench, a good appellate judge exhibits a fair and balanced temperament, giving counsel a reasonable opportunity to explain their positions. If a closed-minded colleague attempts to foreclose an advocate’s argument, through a bullying or hectoring approach that eats up precious time, a good judge makes sure that counsel gets the opportunity to present the planned argument.
Of course, the combination of all these traits in one individual is aspirational, but is there anything wrong with shooting high?
Daivd B. Saxe is an associate justice of the Appellate Division, First Department.