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 judge… judges, 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?
• 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 judge. Everyone 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, no. No one would accept an umpire getting into that zone of theory. The umpire is hired to judge, not 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 Times, Washington Post, Huffington, or Slate. Such partisans should be thrown out of the game.