What Schumer and Pelosi Pretend They Don’t Know About Judges

By David Mills Published on July 12, 2018

One thing every Supreme Court vacancy tell us: lots of supposedly well-educated people don’t know what judges do. Or pretend they don’t. Chuck Schumer, Nancy Pelosi, I’m looking at you.

And at people like a Facebook friend. He’s typical of the kind of person I’m thinking about. A few days ago he listed Amy Barrett’s decisions he thought hurt poor or otherwise marginalized people. He suggested she should not be appointed to the Supreme Court because she didn’t care about the poor. He seemed clueless about the fact that she may have simply been doing her job and ruling on what the law requires.

As it turned out, Barrett wasn’t nominated. But people make the same criticism of the guy who was. He has an “agenda,” they say. Maybe Brett Kavanaugh does. I don’t think so, but maybe. I suspect they really mean that he disagrees with them about what the law requires. They don’t really object to judges having agendas. They adore Justice Ruth Bader Ginsberg, who thinks the Supreme Court exists to advance her agenda.

What Judges Do

Judges are basically umpires. They’re not authors. They’re not inventors. They’re not sages or patriarchs. They decide what the law requires.

The law, let me emphasize, created by the proper law-making bodies. The elected legislators make the law. Blame them for unjust or inequitable laws. If you want better laws, replace your representatives with better ones. That’s the way the Constitution divided up the duties of government.

The legislators decide these things. They’re the rock stars. The judges are more like the roadies. One sign our system doesn’t work right is the fact that Supreme Court justices are now America’s political rock stars. We shouldn’t be able to remember their names.

The courts step in only when people disagree about exactly what the law says. We don’t want judges deciding what the law should be. Judges are umpires, like baseball umpires. Do you remember the names of the umpires in the World Series? No. Of course not.

An umpire might have a keen sense of justice, and know that the Red Sox should beat the Yankees. For that matter, that any team should beat the Yankees. He still can’t call the Yankee pitcher’s pitches balls when they’re strikes. An umpire may feel deep sympathy for the poor and defeated. He still can’t tilt games to the Orioles just because they’re already 42,000 games out of first place. He’s got to call the game as well as he can and let the players win or lose it.

What Judges Do When It’s Tricky

When I said this on Facebook, a friend noted that judges often have a lot of leeway to make decisions. There’s often precedent on both sides. She gave the example of a senior on a fixed income getting too much aid because the government made a mistake.

“A judge can choose to waive the repayments or to set a rate of repayment so low that it will probably never be repaid or to implement the law strictly,” she said. “It depends on whether the judge thinks that the government is accountable for doing its paperwork, or that citizens are accountable for making sure that they aren’t getting benefits that they are not entitled to.”

She’s right. The law’s not always clear. Sometimes it seems to say different things. Sometimes courts have understood it in opposite ways. The law doesn’t work like a mathematical formula. That’s why we have judges. Someone has to figure it out.

But the judge she describes is still umpiring, I’d say, within the latitude given him. It’s like the baseball umpire having to choose whether to give a hard call, like a curve ball that may or may not have caught the corner of the plate, either to the hitter or the pitcher. He may be a hitter’s umpire or a pitcher’s umpire, depending on his understanding of the game, but he ought to be consistently one or the other and have an idea why. 

Not a perfect system. But a better system than one in which every judge does what is right in his own eyes.

What Top Judges Do

We want even judges at the top levels to do their job as umpires and not authors or inventors. Another friend objected that appellate judges like Barrett and Kavanaugh don’t see cases “unless there is ambiguity about the matter. Clear-cut calling balls and strikes stuff is resolved on summary judgment in the lower court.” Even more so with the Supreme Court justices.

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True. Even then, though, we want a judge or a justice trying to make sense of the law as a law, however difficult and subjective that judgment may be. They may not be calling balls and strikes. They may be deciding the trickier question of exactly what the strike zone covers. Still, we don’t want them deciding they want both teams to score in double digits, so they’ll interpret “knee” as meaning “waist” and shrinking the strike zone to about six inches high.

Your senator or congressman, he’s the batter in the box or the pitcher on the mound. He’s the one with his name on his jersey and his stats in the book. The judge or justice, he’s the anonymous guy crouched behind the catcher. Or should be. It’s a bad thing when you know his name. That usually means he screwed up.

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  • Veritatis Splendor

    Conservatives hate the poor, they are against women and reproductive health, they want children to starve, they want to destroy the environment. The left always and everywhere uses ad hominem attacks and supplies the most vile motives to conservative actions. So what’s new? Anyone with any smarts has read a legal opinion on the controversial issues of our day. If you are not smart enough to understand what a judge does refrain from making inane comments.

    • IrishMailey

      In 1996, the Welfare Act that Clinton signed was going to have people starving and dying in the streets. The 2009 ACA was going to provide “affordable” health care ins. for ALL of the US. Case rests.

      • Veritatis Splendor

        Yes, well Bill Clinton twice vetoed a partial birth abortion ban passed by Congress. That makes him the most vile and immoral President ever, in my eyes.

        • IrishMailey

          I wasn’t commenting on Clinton’s morals, but the kind of arguments the left makes. Everything is going to cause people to die in the streets.

          • Veritatis Splendor

            Yes, I see, you are right. Nothing personal, and we still got it all out there. Jump the gun, I did.

  • mockmook

    The analogy sort of works.

    Except, the legislature has decided that with nearly every action it takes, it will be ignoring at least some part of the constitution (the rules).

    And, then you have lower level umpires (judges) cheering on and blessing the breaking of the rules.

    What is the ultimate umpire to do then?

    I know what I wish they would do

  • Uconn_phil

    I have seen this analogy before, but you did a particularly fine job. (It didn’t hurt that you argued that everyone should beat the Yankees, but I don’t want to dwell on that or I will find myself in favor of activists umpires/judges.)

    Let’s see if we can carry the analogy a little further.

    Every umpire has some really easy calls. The pitch over the batter’s head is a ball, the pitch swung on and missed is a strike. Some calls are tough — as you note, the hard breaking curve that may or may not have cut the corner, but both the easy and the tough calls can both be handled by umpires.

    Let’s talk about the really tough calls. A routine ground ball goes to the shortstop who tosses it to the second baseman who steps on the bag, catches the ball, whirls and throws it to first. The umpire calls out the runner going from 1st to 2nd. But wait, was the second baseman’s foot on the bag when he had possession of the ball? A quick glance at the replay suggests it may not be the case. Let’s go to the instant replay, which does reveal that he took his foot off the base a split second before the ball was in his glove.

    Imagine that ane official working the replay booth decided that the second baseman showed clear intention of stepping on the bag and intended keep the foot on the bag until the ball was caught, and so shouldn’t be faulted for a technical violation of the rule. I guarantee that if this happened on a regular basis we would all know the names of those people.

    So at the risk of pushing the analogy a little too far, the umpires are the lower-level judges, the umpire crew chief is the appellate level, and the replay officials are the Supreme Court. If they all do their job properly, there will be some fans who know some of the empires but hardly anybody will know the names of the review officials.

  • xeriscapelady

    I liked your article until the end. I remember the VERY BAD like Ginsberg, and the VERY GOOD like Thomas or Gorsuch. Maybe the average public is not supposed to remember them but I think people are ignorant LIB DEMS if they can’t name at least 4 of the Supreme Court Justices. Don’t you?

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