The news this week noted "criticism of a federal judge" by the President of the United States (POTUS). This was followed by commentary delivered by the Chief Justice of the Supreme Court of the United States (SCOTUS). A British Broadcasting Company (BBC) story noted Justice Roberts' public comments, and characterized it as an "extraordinary step, of rebuking President Donald Trump's criticism of a federal judge."
The POTUS criticism characterized a federal judge as "an Obama Judge." Justice Roberts' perspective is that "we do not have Obama judges or Trump judges, Bush judges or Clinton judges." Instead, the Chief Justice perceives that the federal judiciary "is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them." The contention or implication is seemingly that there is no politics or political leaning in the U.S. Federal Courts.
Though not referenced in that BBC story, the BBC published coverage of the recent SCOTUS appointment in September. The BBC there questioned "Why is the US top court so important?" The BBC concluded that the conflict and controversy regarding the appointment of Brett Kavanaugh was attributable to "the immense impact the US Supreme Court has on US political life." It noted that SCOTUS "is often the final word on highly contentious laws." Furthermore, it resolves issues in disputes "usually brought to the court after they are appealed from a series of lower courts." Thus, the federal courts are involved in the discourse this week between POTUS and the Chief Justice.
In October, the BBC returned to SCOTUS coverage with "Why US top court is so much more political than UK's." That headline, itself, is perhaps a fairly direct expression of a perception of the SCOTUS. This story, in part, repeats portions of the September article verbatim. Then, reaching back to Dred Scott v. Sandford, 60 U.S. 393 (1856), the BBC expresses conclusions that the SCOTUS has evolved into a "partisan court," noting "evidence" for its conclusions but citing mostly opinions. The evolution, it contends, began in 2010. And, the BBC quotes one scholar concluding "Politicisation of the Supreme Court causes the American public to lose faith in the Court."
In 2005, John Roberts was nominated to serve as Chief Justice. CNN reported on his opening comments delivered at the outset of the Senate confirmation process. Justice Roberts spoke of "humility" in service and the "judicial role." He opined that "judges and justices are servants of the law, not the other way around." He compared judges to umpires: "umpires don't make the rules; they apply them." He reminded us that "the role of an umpire and a judge is critical. They make sure everybody plays by the rules." Not just "justices," the job about which he was then specifically focused, but "judges and justices" in general, and "judges" as regards that impartiality. This inclusive statement is worthy of focus.
Chief Justice nominee Roberts reminded us that "nobody ever went to a ball game to see the umpire." We judges are not the attraction, and we should not be. We are functionaries (note that will likely garner criticism; some will misinterpret that as deprecating judges generally, and for that I apologize in advance). We must, nominee Roberts said, "have the humility to recognize that they (judges) operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath." In short, our role is to follow the law not to make the law. We judges thus have a mandate, a purpose, and a touchstone.
But, we have perhaps a dichotomy of perspectives. Why did a Chief Justice nominee expound on the judicial role? Why is there a need to remind Senators, or perhaps all of us, of the judicial role of calling balls and strikes? That role was called back to the commentary during the nominee Kavanaugh hearings this year. A major league umpire wrote in The Washington Post of his role that "personal integrity and respect for the game are at stake." Therefore, he says, "When you put on your uniform, you are supposed to leave all your subjective feelings in that dressing room."
He takes issue also with the Chief Justice umpire analogy, claiming that it oversimplifies the umpire's job. He stresses that "there are many intangibles when it comes to calling balls and strikes." The Umpire explains perspectives on observing pitches, the speed of the ball, and the actions of the batter (any swing, a "full swing," etc.). He contends that observation of "critical adjustments" that occur in "thousandths of a second" is his obligation, as are a variety of other determinations throughout the field. With due respect, his explanation of how being an umpire differs from judging simply reinforces the analogy to me and causes me to doubt that he knows as much about being a trial judge as he might think. Having presided over hundreds of trials, there are similarly a multitude of obligations for the judge. Those include the breadth of the hearing room, process, dignity, witnesses, parties, attorneys, and more.
So, we return to the controversy in this week's POTUS and SCOTUS exchange, as to whether there are or are not "Obama judges or Trump judges, Bush judges or Clinton judges." One might wonder why the news media finds the history of a judge's appointment relevant? Last week, The Washington Post reported on a dispute between POTUS and a CNN reporter, noting that "Kelly, whom Trump appointed to the federal bench last year, handed down his ruling." In February, Brietbart similarly reported on Deferred Action for Childhood Arrivals (DACA) describing "Judge William Alsup from a federal district court in that state, appointed by Democratic President Bill Clinton." These are two examples, but such statements may exist in other contexts. Is there at least a perception that the news media finds relevance in who appointed a particular judge?
Perhaps people see disputes and debates about judicial nominees from different perspectives. It is possible that some see relevance in the history of a particular judge's appointment. The coverage from afar, the BBC, after all, brings a perspective from across the pond, appears to accept that the SCOTUS "is so much more political than UK's" highest court and that it has "immense impact" on "US political life." Whether any of that is true is left to the reader. The point, from my perspective, is that at least some appear to have perceptions of a court or courts in a political perspective. That is, a perspective that there is at least some, however minute, potential for decisions that are influenced or impacted by more than the facts and law in that case.
Is that a product of years of news stories that focus upon a judge's origin (by whom appointed or by what past experience)? Is that a product of descriptions or discussions that focus attention on the law, the precedent, and the logic of various decisions? Do we get enough critical detail of the law and logic when decisions are described in the press? Is it possible that Americans have been acclimated to perceptions or allegations of courts or judges that do not remain true to Chief Justice nominee Roberts' admonitions for "humility," for "service," that we are "servants of the law," "umpires" that follow and apply the rules? Is it possible that the public perceives us differently than we perceive ourselves? And, should we be interested in their perceptions regarding the impartiality and integrity of this vocation and profession in which we engage?
This post will likely draw another "what does this have to do with workers' compensation" response. I hear that periodically. I lament that some perceive the legal process as subject to categories or "silos." The fact is, that when a physician accidentally removes a healthy kidney, it affects the public trust in a broader population than just a particular Florida surgeon. That news coverage might cause some people to doubt their own doctor, whether that is fair or not.
And, when the news, commentators, Presidents, Chief Justices, or others discuss the function and performance of judges, that discussion affects all judges; it affects the law itself and those of us who are "servants of the law." Though I am at the foundation of that pyramid, a trial judge by trade, It is possible that these discussions affect all judges. Perhaps we have a singular potential to reassure the public or our judicial function.
Perhaps, as the Washington Post umpire suggested, we need only remember that when we take the bench, every time we take the bench, that "personal integrity and respect for the game are at stake." We may be the subject of scrutiny. Our behavior, our demeanor, and the clarity and completeness of our rulings will be critical. They will be critical every day, whether we think anyone is watching or not. Let's remember to strive "to do equal right to those" who need us.
