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Arthur Vanderbilt eloquently describes the qualities that judges should have: "Judges learned in the law, not merely the law in books but, something far more difficult to acquire, the law as applied in action in the courtroom; judges deeply versed in the mysteries of human nature and adept in the discovery of the truth in the discordant testimony of fallible human beings; judges beholden to no man, independent and honest and—equally important—believed by all men to be independent and honest; judges, above all, fired with consuming zeal to mete out justice according to law to every man, woman and child that may come before them and to preserve individual freedom against any aggression of government; judges with the humility born of wisdom, patient and untiring in the search for truth, and keenly conscious of the evils arising in a workaday world from any unnecessary delay—judges with all these attributes are not easy to find, but which of these traits dare we eliminate if we are to hope to attain evenhanded justice?"
Vanderbilt urges that formal standards be set up stating the necessary qualifications for judges and that candidates for judicial office be selected by bar and lay leaders, none of whom hold public office. A list of qualified men can be drawn up, and the executive or the legislature required to choose from that list. After being appointed, judges would run for election only against their records on the bench, i.e., no other candidates would appear on the ballots, which would be simply phrased: "Shall Judge Blank be retained in office?" This system has been recommended by the American Bar Association, but so far almost all the states have ignored it.
ENDING THE SPORTING THEORY
Vanderbilt is in complete agreement with the late John Wigmore, dean of the Northwestern University Law School, who criticized and derided what he called "the sporting theory of law." Scoffed Wigmore: "To require the disclosure to an adversary of the evidence that is to be produced would be repugnant to all sportsmanlike instincts. Rather permit you to preserve the secret of your tactics, to lock up your documents in the vault, to send your witness to board in some obscure village, and then, reserving your evidential resources until the final moment, to marshal them at the trial before your surprised and dismayed antagonist, and thus overwhelm him."
But surprise is only one ploy under the sporting theory. Another is to take advantage of technical rules of pleading, many of which grew out of historical situations that have no counterparts in modern life.
After a long and little reported fight, great strides were made in improving procedures in the U.S. federal courts. Judge Vanderbilt says that the 1938 Federal Rules of Civil Procedure are "models of simplicity and flexibility." So far, seven states have almost entirely adopted the federal rules, while twelve have followed to a lesser extent.