Monday, October 01, 2018

"Judges are like umpires": John Roberts' Supremely Silly Simile

October 4th, 2018 Update: 2,400 plus law professors have signed on to a letter arguing that Judge Kavanaugh has not demonstrated the temperament necessary to sit on the Supreme Court. Apparently they do not believe Judge Kavanaugh is capable of being an umpire. 

"Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire." --Judge John Roberts (from his September 12, 2005 opening statement during his confirmation hearings for the position of Chief Justice of the United States Supreme Court).

"A good judge must be an umpire--a neutral and impartial arbiter who favors no litigant or policy." --Judge Brett Kavanaugh (from his September 4, 2018  opening statement during his confirmation hearings for the position of Associate Justice of the United States Supreme Court).

As I write in late September, it's still not clear that Judge Kavanaugh will actually make it to the Supreme Court. In his September 27th statement to the Senate Judiciary Committee defending himself against sexual assault allegations, his willingness to attribute public exposure of the allegations to a range of conspiracies including "revenge on behalf of the Clintons" hardly sounded like someone who would be ready to assume the role of "neutral and impartial arbiter." Moreover his statement did not hold up very well to a fact-check, something that calls into question whether he should be a judge on ANY court, let alone the Supreme. 

A handful of Senate Republicans (Jeff Flake, Susan Collins, Lisa Murkowski) have not closed the door on voting against Kavanaugh if the limited FBI investigation of allegations against him fails to reinforce his version of events. So it may very well be that Kavanaugh's fate (and maybe even the Court's fate for the next generation) rests on whether these three senators have the courage to walk the talk. Don't count on it.
Given the way he's conducted himself at the confirmation hearings, and given his prior experience as a hyper-partisan lawyer for the Republicans, it almost seems pointless to examine Judge Kavanaugh's judicial philosophy. We all know that he was nominated only because (a.) there's a high likelihood he will be the 5th vote needed to swing the Court solidly to the right and (b.) he's expressed a view of presidential powers that protects the President from prosecution while in office. As Kavanaugh was not on Mr. Trump's original list of potential nominees, these reasons for his selection seem very likely.

So it does not look like Judge Kavanaugh would be a judicial umpire in the way he defines it, or that his supporters are concerned about anything other than that he vote the "right" way. But just for the heck of it, let's take a serious look at the "judge as umpire" metaphor. In the rest of this rant I will identity what is wrong with the umpire metaphor as applied to judges. I'll suggest another of way looking at judges ("judges as peer reviewers") that is not as simple as umpire but more in line with what a great judge really does and what we should really want in a judge.

So what's wrong with the umpire metaphor? 

First, the idea of judge as umpire suggests that a judge is mostly responsible for applying already existing rules in a fair manner so as to resolve conflicts between plaintiffs and defendants. That vision of a judge might have some utility in small claims and divorce court (although even there it's a very clumsy fit), but has almost nothing to do with judicial activity at the appellate level (including and especially at the Supreme Court). Appeals court judges don't just apply rules, they INTERPRET them, sometimes in a manner that transforms American society.
Second, historically the Supreme Court has been at its worst when it is dominated by "the judge as umpire" type justices. Such judges would agree with what Brett Kavanaugh wrote in a 2016 law review article: The "greatest moments in American judicial history have been when judges stood up to the other branches, were not cowed, and enforced the law." Sure such moments can include the Court ruling against Nixon in the Pentagon Papers, but more typically the "judicial umpires" have enforced the law in such a way that rejected as unconstitutional any legislative attempt to build a more perfect union. Think Dred Scott, separate but equal, and the Court's opposition to the New Deal in the 1930s--to cite just three especially horrifying judge as umpire moments. In each case, the judges stood up to and were not cowed by the other branches, and enforced the law. Suffice it to say those umpires blew some really big calls.
In 1896 the Supreme Court claimed only to be enforcing the law when they gave thumbs up to segregation in Plessy v. Ferguson. The 8 judges in the majority, who did not see it as their responsibility to remove racism from the law, were acting like judicial umpires. 
Third, the judge as umpire metaphor takes the judges "out of the game" in a way that is neither realistic nor desirable. In baseball, the rules state that players, coaches, and managers cannot argue balls and strikes with the umpire. If arguments are allowed over balls and strikes, then the umpires are subject to a range of persuasive tactics; each team would do whatever it takes to get the umpire to adopt their respective view of what the strike zone should be. In a real sense, the manager would work hard to get the umpire to be part of his team. So the "no arguing over balls and strikes" rule is designed to increase the chances that the umps are not unduly influenced by persuasive players, managers, coaches, and even fans.

In contrast, the entire purpose of a hearing before the Supreme Court is to argue over balls and strikes. The judges are "in the game" every bit as much as the Legislative and Executive branches. That is what we mean by "checks and balances." This is one reason why the so-called "originalist" theory for interpreting the Constitution is so problematic. To put it in terms of the baseball metaphor, the originalists (the late Antonin Scalia would be the best example) think that judicial umpires should adopt as their strike zone that which existed in the first official game ever played. In real baseball argument with an umpire who holds a fixed, traditional view of the strike zone is not allowed. In a courtroom setting, the essence of the proceedings is for all sides to argue the strike zone. That's why advocates for each side submit briefs to the court, and also why the Court allows oral argument. The Supreme Court justices are IN that game. That's why the best judges are those who listen well, recognize that their current understanding of the Constitution could be wrong, and are open to changing their mind when confronted with compelling evidence and legal argument. This is almost the exact opposite of what an umpire does, especially when we are talking about calling balls and strikes.

Finally, many real life judges recognize the limited value of the judge as umpire metaphor for understanding what judges do. Justice Theodore McKee's "Judges as Umpires" essay for the Hofstra Law Review is an excellent statement of the case against the metaphor. Here's just one example of one of Judge McKee's many spot-on statements:

"The [umpire] metaphor has become accepted as a kind of shorthand for judicial 'best practices' that obscures a complex dynamic that is far more amorphous, elusive, and troublesome than its simplistic appeal suggests."
Judge Theodore McKee of the Third Circuit Court of Appeals is one of many modern judges who recognize the inherent shortcomings of the judge as umpire metaphor. 
Consequences of a silly simile

Justice Roberts was not the first to use the umpire analogy to describe what judges do (see this essay for citations on the history of the analogy). Unfortunately Judge Roberts received much praise for the analogy during his confirmation hearings, mostly because it seemed to be a clear and concise way of protecting him--and the Supreme Court in general--against charges of being "activist." So any time a nominee for the Court wants to assure the public he or she is not activist, s/he merely need to resort to the "umpire" imagery. Pretty slick, eh?

Not only does the umpire metaphor protect some judges against charges of being activist, but it's also become a way of signaling to the President and Senate Judiciary Committee where one's loyalties lie. When Judge Kavanaugh framed his vision of judicial responsibility as being like an umpire, he was clearly telling the President and Republicans that he is on the side of Judge Roberts and the other so-called "conservative" justices on the Court. (After being nominated by President Obama, Elana Kagan in contrast to Kavanaugh overtly rejected the umpire metaphor during her confirmation hearings, a clear sign that she would be in sync with the so-called "liberals" on the Court).

What's most troubling is that the umpire metaphor has evolved (or perhaps de-volved) into a specific type of umpire judge. What hyper-partisans on both sides want (though it is clearly more aggressive on the Republican side) is a kind of "corrupt replay official" umpire. In modern Major League Baseball, the replay officials are umpires who sit in a booth in New York. When there's a disagreement over  a specific call at any game, the replay officials are called upon to watch the video and either confirm or overturn the call on the field. The replay officials take feeds from as many as 12 cameras, so they get numerous perspectives on the play.

A corrupt replay official would be one who decides the call without taking a serious look at all the camera angles. Isn't that what hyper-partisans on all sides want? In the 2016 campaign Donald Trump was clear that he would only appoint judges who would vote to overturn Roe v. Wade. That is, he wants the Court filled with corrupt replay officials.
When politicians say they want judges to be umpires, what they really want are corrupt replay officials. Baseball replay officials get to see a disputed play from 12 different camera angles. Imagine if a replay official had his mind made up before even looking at all 12 angles? That's exactly what hyper-partisan politicians want from the judges. 
A better analogy: judges as peer reviewers

Based on what's already been said, when a judge announces that he or she endorses the umpire metaphor for judicial action, red flags should immediately go up. "Judges are like umpires" is powerful in large part because of its simplicity and the way in which it communicates an aversion to judicial "activism." But as I hope I have demonstrated clearly in this rant, as a practical matter the umpire analogy has very little to do with the actual job of appellate court judges, and when taken to its extreme gives us the "corrupt replay official" that hyper-partisans want on the court.

I think a better analogy, though it admittedly lacks the simplicity of umpire, is the judge as peer reviewer. In academic circles, peer reviewers play a critical role in determining what counts as knowledge in particular fields of study. Peer reviewers determine if scholars who want to introduce NEW concepts into the field actually understand the OLD ones.

Let's use my field of Communication Studies as an example. A competent, ethical peer reviewer recognizes that s/he is helping to determine what communication "means." To that end, we would expect that a great peer reviewer:

*LOVES the field of Communication Studies.
*Is a recognized and respected expert in a specific area(s) of the field.
*Insists that scholars who seek to influence what is meant by communication observe the highest standards of rigor and integrity in their work.
*Expects that new scholarship will challenge her current understanding of communication.
*Has the intellectual maturity necessary to change his mind about communication when confronted with compelling evidence and argument for a new point of view.
*Views the relationship between scholars and peer reviewers as a collegial one rooted in the values of mutual respect and a shared desire to make sure that Communication Studies can help humanity reach its full potential.

Judges like peer reviewers are charged with determining what the Constitution "means." The greatest judges love Constitutional law, are recognized experts in at least one part of it, insist that advocates who come before them demonstrate deep grounding in the legal history of the dispute in question, expect that their own current understanding of the Constitution will be challenged, are mature enough intellectually to change their minds when confronted with compelling evidence and argument for a new Constitutional interpretation, try to create an atmosphere of mutual respect for all litigants, and ultimately stand for a desire to make sure that the Constitution is understood in such a way that upholds the essential equality and dignity of all human beings.
If we conceived of judges as peer reviewers in the way I've described it, I dare say the make up of the current Supreme Court would be quite different. The judge as peer reviewer would not necessarily be more "liberal," but she would certainly be more unpredictable--as are all people with deep intellects and open minds.

"Judges are like umpires." I hereby stand resolved that it is time to reject such a supremely silly simile.