We need our judges to act more like umpires and less like politicians. A good judge doesn’t make up the rules or change them mid-game. A good judge just calls balls and strikes, faithfully applying the rules as written — fairly, consistently and without giving either side an unfair advantage.
This is not a revolutionary thought. Chief Justice John Roberts popularized the judge-as-umpire metaphor at his confirmation hearing in 2005, but it goes back decades before that. In 1951, Justice Robert Jackson — who dissented against the internment of Japanese-Americans during World War II and led the prosecutions against Nazi leaders afterward — said the test for picking a fair judge is like picking a fair umpire. That doesn’t mean someone who “shall never make a mistake or always agrees with you, or always supports the home team.” You just “want an umpire who calls them as he sees them.”
We need more judges to call ’em as they see ’em.
The umpire theme has resonated across the years because it is true to our constitutional design. In our three-branch system of separated powers, the legislature makes the laws, the executive enforces them and the judiciary simply applies the law as written.
That’s not optional. The proper judicial role is compelled by our Constitution. Leave the lawmaking to the lawmakers, the policy to the people’s representatives. Judges just apply the law as written, whether it’s a liberal law or a conservative one, a smart law or a dumb one. Just call balls and strikes.
Some people think judges should be more than neutral umpires — they should be players in the game. Judges are really just politicians in robes, the theory goes, so let’s appoint and elect partisan warriors to the bench to advocate for our side, for our set of policy issues.
We should all reject this view, just as Jackson did 71 years ago. Judging a judge by the simple test of whether “our side” wins is too cynical and would collapse our three-branch system and the separation of powers. A game where the ump roots for one side isn’t worth watching for long.
Some think the game is up already — the rules are broken, the Constitution is outdated and stuck in the past. We need judges, this theory goes, to update and amend the Constitution to breathe new life into a dusty old document and make it fit modern times.
We should all reject this view as well. Our Constitution did not freeze society in 1789. We’ve been given a false choice between a living Constitution and a dead one — between a free-for-all Constitution that judges can rewrite at their pleasure, and a cold, crumbling monument of a distant past with distant values.
What we have instead is an enduring Constitution. The brilliance of our Constitution is that it sets down timeless principles of self-government that allow each generation the freedom to craft a society that reflects its shared values — gradually learning from the mistakes of the past to form a more perfect union. But the point is that it is all of us — We the People — who choose these laws, not a handful of judges cloaked in fancy robes.
We need our judges to get back to the basics of judging. Politics are white-hot right now. The crowd is screaming and the game is at a fever pitch. But this is when we need our judges to be levelheaded umpires the most, to take a deep breath, block out the noise and go about the simple and humble — but critically important — task of calling balls and strikes.
Paul Hudson is an appellate lawyer and a candidate for the Michigan Supreme Court.