Did You Ever Face a Real Judge?

For many of us, our first — and perhaps only — encounter with a real-life judge has taken place in traffic court. We were ticketed, perhaps fairly (more probably unfairly), and the cop — after trying to elicit our confessions and admissions of guilt while writing the citation — ended the brief encounter with his or her snide rejoinder: “Tell it to the judge.”

In that traffic court, we encounter an actual judge. And the judgejudges, as judges should do. Doing his or her best to call it as accurately as he or she honestly can, the judge hears and weighs the evidence and determines such weighty questions as:

• Was the driver speeding over 70 in a 55 zone?

• Was he speeding but at less than 15 mph over the speed limit?

• Did he speed because he felt he was in danger from a tail-gating drive-by spirant?

• Was the flow of traffic unusually fast at that hour and on that road?

• Did the guy come to a full stop at the corner sign?

• Was the “STOP” sign obstructed by a tree?

• Did he have the right of way?

• Is that his photo that the traffic-light camera snapped?

• If he was in Montana at the time the photo was snapped by the electric eye in Louisville, how could the photo be he?

• Was his car registered properly with the DMV?

• Was he carrying the state-mandated insurance minimum?

These are the kinds of questions the judge asks and tries her or his best to answer. By contrast, they are not there to ask these questions:

• Should there be speed limits in a world where time is so valuable?

• If so, what should speed limits be these days, given the price of gasoline, the rise of hydraulic fracturing, and the renewed Iran boycott?

• Should there be “STOP” signs in a world where many intersections often have little cross-traffic?

• Should there be electric-eye cameras at traffic lights? Are they unfair? Do they not cause more accidents than they prevent?

• Is it fair to require so much money for car registration?

• Is it fair to require automobile insurance? If so, are the required amounts fair?

That second set of questions is not the purview of the judgeEveryone knows that. Rather, it is the purview of the Legislature, the body Constitutionally empowered to make the laws. By contrast, the judge’s exclusive mandate is to interpret the laws enacted by the Legislature. There is a Motor Vehicle Code. Them’s the rules. The judge is not there to write them or to enact them but to interpret them.

Everyone knows this. Everyone — you, I, Chuck Schumer, Elizabeth Warren. No one seriously expects a judge in traffic court to make laws, to “legislate from the bench.” No one — not even the accused — typically would argue otherwise. And so it goes with all judges — even, say, baseball umpires. The umpire does his best to judge whether a pitch was a ball or a strike, whether a batter swung his bat just a bit too much before holding up, whether a hit ball passed first or third base in fair territory, whether a fielder placed a tag on a base-runner before the runner touched the bag. Yes, there often may be disputes when the player or his manager feels that the umpire has judged wrongly. Nowadays such a baseball dispute even can be resolved by an appellate panel taking their own second look at video taken of what had just transpired on the field. But the disputes with umpires never transcend into the ethereal:

• Are three strikes really enough? Too many?

• Should a foul with two strikes be converted to strike three?

• What should be the strike zone this afternoon?

• Should all batters be entitled to a free pass after four bad pitches? Maybe we should change to six, seven such pitches before a walk?

• Is it fair to hold a .215 batter with a pitiful on-base-percentage to the same standards that we apply to a .345 hitter with a sizzling OPS?

• Maybe weaker players deserve compassion and should be given a walk after two pitches miss the strike zone, while the better hitters should need to accrue eight or nine balls but also be called out after only two strikes?

Again, there are plain rules. The formal rules of the game of baseball. Moreover, there are the overlay of local “ground rules”at each game that require tweaking, as at the stadium with the closed dome where special local rules, the “ground rules,” fine-tune what happens if a batted ball hits the dome top or ricochets off a sound speaker or its catwalk and then hits something else.

And what if the batter came from a baseball-deprived childhood? What if his parents never played ball with him? Mickey Mantle’s father, Mutt, used all his spare time outside the lead mines in Commerce, Oklahoma to teach and encourage The Mick to hit and to throw. The Mick was blessed with Baseball Privilege. Also with height and muscle. Shouldn’t baseball umpires be prepared to “legislate from the plate” — right on the field—when presented with mediocre aspirants who approach the game with a passionate desire to succeed — like the beloved 65-pound, 3-foot-7-inch Eddie Gaedel who proudly wore St. Louis Browns number “⅛” in his only lifetime batting appearance? (He walked on four pitches and promptly was replaced by a pinch runner. In the words of team owner Bill Veeck: “He was, by golly, the best darn midget who ever played big-league ball. He was also the only one.”)

Interestingly, noNo one would accept an umpire getting into that zone of theory. The umpire is hired to judgenot to legislate.

Keep all this in mind — traffic judges and baseball umpires — as we approach next Monday, July 9, when President Trump will name his second Supreme Court nominee. Because that, really, is all a Supreme Court justice should do. Just as the Motor Vehicle Code lays it out for the traffic judge and the rules of baseball define the umpire’s parameters in calling balls and strikes, so it is that the United States Constitution, augmented by federal statutes enacted by Congress and codified in the United States Code, lays out the laws of the land. Yes, when those rules become antiquated, or if additional rules are needed, the system allows and provides clear procedures by which the Constitution can be amended and by which new statutes can be enacted. In all this, the judge’s job is not to make new law from the bench — tempting though it be — but to interpret the laws placed on the books by the duly elected legislators.

The new justice whom President Trump names to succeed retiring Justice Anthony Kennedy should be a person of demonstrated sparkling intellect who can grasp the deepest meaning of each word in a Constitutional law, or who can wade and row successfully through the most turgid and sometimes internally contradicted prose of a poorly constructed Congressional enactment, and who brilliantly can apply that law dispassionately to the facts of the case at bar. The process sometimes will entail distinguishing or comparing discrete facts within a case: “The law unmistakably says ‘X,’ but this case differs in one compelling way” . . . or “This case seems different in many ways, but in the most pertinent aspect it is quite the same.” That is what a judge should be doing: calling balls and strikes based on the rules of the strike zone, adjudicating traffic tickets based on whether the demonstrated evidence comports with the Motor Vehicle Code that was duly enacted by others assigned that responsibility.

Beyond that, the justice should be an excellent writer because every word that he or she pens will be analyzed and interpreted by thousands of lower-court judges, their clerks, attorneys, litigants, law professors, journalists, and laity for decades, as they each respectively derive from the written judicial opinion the rules going forward. Is it permitted or forbidden? Under what circumstances? Does the ruling inadvertently leave a loophole? Indeed, if the judge adds a comment in the opinion, discussing something else not even at controversy in the case, is it merely obiter dictum — just a “neither-here-nor-there / oh-by-the-way” afterthought?

Moreover, a judge should have “judicial temperament” — projecting a personality and character that generates deep confidence among the public that, though this judge be humanly fallible, she or he clearly approaches matters of jurisprudence thoughtfully with circumspection and gravity, not flippantly with arbitrariness and capriciousness. That is what we want from our umpires, our traffic judges, and our Supreme Court justices: a sense that they played fair with circumspection. No matter what your politics, today there are seven sitting SCOTUS justices with such judicial temperament — Justices Thomas, Alito, Gorsuch, Breyer, Kagan, Sotomayor, and Chief Justice Roberts. (Justice Ginsburg projected judicial temperament throughout most of her once-distinguished career; she lost it, with her every vote suspect when President Trump is a factor in a dispute before the High Court.

The Democrats now, once again, are overplaying their hand. Chuck Schumer insanely would create a new rule that a Supreme Court justice never can be selected in an“election year.” The thing is … every year is an election year. Mayors, state legislatures, elections to fill federal vacancies. No one ever before has given voice to such foolishness. Presidents always name new Supreme Court justices when vacancies arise during mid-term-election years, including Democrat favorites Justice Breyer (Clinton Summer of 1994) and Justice Kagan (Obama Summer of 2010). By contrast, there is real precedent and seriousness— the Biden Rule —to the premise that a President should not pick a new Supreme Court justice in a Presidential election year because the national mood is about to inform what kind of Presidential selection the public now wants in comparison to four or eight years prior. Eight years of Obama saw the American electorate undergo a sea change, even if the oceans did not stop rising and the planet did not heal.

In picking the new justice, the President ought not overtly pinpoint “litmus tests” on issues like abortion or religious freedom. The Constitution imposes all the “litmus test” that is needed. For example, if the Constitution says that late-term abortion is legal, then so must the Supreme Court justice rule — unless and until the law is amended. If not, then not. Likewise with religious liberty. Likewise with all. Fidelity to the Constitution is ample “litmus test” for a Supreme Court justice: Will he or she be faithful to the actual words, the honest English construction, and the true intent of the Constitution’s authors, the Founding Fathers, guided primarily by the plain meaning, occasionally informed by explanations and legislative history found in such contemporaneous sources as The Federalist Papers? Is he or she truly brilliant and capable of the highest level of interpretation and analysis? Is he or she a clear and pristine writer who can put words onto paper that both teach and instruct while standing impregnably as a fortress incapable of being twisted or manipulated to mean something different from that intended? And will he or she permanently set aside personal beliefs in deference to established adjudicated judicial precedent — stare decisis — except for the most outlier of previous Court decisions that demand overturning because of grave prejudice and injustice, or profoundly faulty legal reasoning that never was rooted in the Constitution but in the mere passing zeitgeist?

Reasonable minds often will differ. That is why like-minded Justices Alito and Thomas, or like-minded Justices Breyer and Kagan do not always land alongside each other. But the definition of a great judge worthy of sitting on the nation’s highest bench should have little to do with his or her personal politics — indeed, a consideration that now renders Justice Ginsburg suspect and judicially unsuited to the point of seemingly demanding recusal on all matters bound with President Trump. And how sad, particularly from the day that Democrats assassinated the sterling character of Judge Robert Bork, that the search for justice in the law has derogated to a cynical political card shuffle where too many Democrats and even a few Republicans want a Supreme Court justice who essentially will undertake in advance to decide most or all cases without ever reading litigants’ briefings or listening to oral arguments as prelude to making a considered dispassionate judicial ruling, but will promise the Senate instead to check the morning editorial lines of the New York TimesWashington PostHuffington, or Slate. Such partisans should be thrown out of the game.

Dov Fischer
Dov Fischer
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Rabbi Dov Fischer, Esq., a high-stakes litigation attorney of more than twenty-five years and an adjunct professor of law of more than fifteen years, is rabbi of Young Israel of Orange County, California. His legal career has included serving as Chief Articles Editor of UCLA Law Review, clerking for the Hon. Danny J. Boggs in the United States Court of Appeals for the Sixth Circuit, and then litigating at three of America’s most prominent law firms: JonesDay, Akin Gump, and Baker & Hostetler. Through the years, he has practiced both in the United States federal courts and in the state courts on a broad range of case matters, gaining expertise in virtually every subject area of complex civil litigation including labor and employment law, securities litigation, federal government contracts litigation, bankruptcy law, ERISA law, Hague Service Convention and Hague Evidence Convention practice, professional malpractice law, entertainment litigation, federal and state fair-credit-reporting requirements, the filed-rate doctrine as it affects carriers on land and rails, insurance bad faith, cybersquatting, commercial lessors’ rights, international contracts, fair-housing litigation, the law of computer role-playing games, federal and state antitrust matters, director and officer liability, defamation and false-light litigation, unfair-business-practices law, and the fuller gamut of advanced torts and classic breach-of-contract case matters. He also has practiced appellate law successfully, authoring the winning brief in Bierbower v. FHP, Inc., 70 Cal. App. 4th 1, 82 Cal. Rptr. 2d 393 (1999). His UCLA Law Review analysis of director-and-officer liability issues in depository institutions has been cited in a broad range of federal district court and appellate circuit opinions. Among his major complex litigation representations, Rabbi Fischer represented Philip Morris during the California tobacco litigation, overseeing their massive document production effort; and the accounting firm of KPMG Peat Marwick during the Orange County bankruptcy litigation. In addition to representing such other major corporate clients as Samsung, Hughes Aircraft, Experian, KPMG Peat Marwick, Albertson’s Stores, Embassy Suites, Spencer Gifts, Cardinal Health, BOC Gases, IHI Danmark, Wet Seal, Bioware (“Baldur’s Gate”), and Occidental Petroleum, Rabbi Fischer also has devoted substantial pro bono efforts unique to his background, working to prevent unwarranted autopsies, inducing recalcitrant spouses to grant Gett-based Jewish divorces, representing communal rabbinic leaders sued for advocating unpopular but courageous positions, and participating in representing the successful plaintiffs’ class in the nationwide class-action lawsuit brought against European insurance companies by surviving families of Holocaust victims. He also disappointed his then-young son when he successfully represented a client named Stan Lee in a cybersquatting defense against an eponymous plaintiff whose colorful literary output his son admired. In his rabbinical career, Rabbi Fischer has served three terms on the Executive Committee of the Rabbinical Council of America, is Senior Rabbinic Fellow at the Coalition for Jewish Values, has been Vice President of Zionist Organization of America, and has served on boards of Jewish Federations in New Jersey and in Los Angeles, on boards of the American Jewish Committee, B’nai Brith Hillel, and several others. Earlier in his career, he was national director of American Friends of Likud / Herut Zionists of America, and he participated with 35 other once-young families in founding, building, and living a year in a then-new American community in Ginot Shomron, Israel (referred to by Israel’s opponents as a “West Bank settlement”). His writings on contemporary political issues have been appearing nationally for forty years, dating back to his undergraduate years at Columbia University, where he amazingly was elected to represent the college student body in the University Senate. Those writings have appeared over the years in publications including but not limited to the Wall Street Journal, the Los Angeles Times, the Jerusalem Post, National Review, American Greatness, American Thinker, The Weekly Standard, Frontpage Magazine, American Thinker, Jewish World Review, Israel National News / Arutz Sheva, and in other Jewish newsmedia in American and in Israel. He also is the author of two books, including General Sharon’s War Against Time Magazine, which covered the Israeli General’s 1980s landmark libel suit. Among his proudest honors, Brooklyn-born Rabbi Fischer has been named an “Honorary Kentucky Colonel” by four different Governors of that Commonwealth recognizing his service to and passionate love of that state, has been honored by law students for faculty recognition, has received national awards and recognition for his academic and scholarly writings, and is a winner of an American Jurisprudence Award in Professional Legal Ethics.
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