It now seems besides the point, but I want to go back and consider something Judge Kavanaugh said in his initial testimony three weeks ago before the Senate Judiciary Committee, now largely, and deservedly, forgotten.
In his earlier testimony, Judge Kavanaugh made the following ludicrous statement, echoing a similar statement by (God help us) Chief Justice Roberts at his confirmation hearing before the Senate Judiciary Committee:
A good judge must be an umpire, a neutral and impartial arbiter who favors no litigant or policy. As Justice Kennedy explained in Texas versus Johnson, one of his greatest opinions, judges do not make decisions to reach a preferred result. Judges make decisions because “the law and the Constitution, as we see them, compel the result.”
I don’t decide cases based on personal or policy preferences.
Kavanaugh’s former law professor Akhil Amar offered an embarrassingly feeble defense of Kavanaugh’s laughable comparison, in a touching gesture of loyalty to a former student, to put the most generous possible gloss on his deeply inappropriate defense of an indefensible trivialization of what judging is all about.
According to the Chief Justice and to Judge Kavanaugh, judges, like umpires, are there to call balls and strikes. An umpire calls balls and strikes with no concern for the consequences of calling a ball or a strike on the outcome of the game. Think about it: do judges reach decisions about cases, make their rulings, write their opinions, with no concern for the consequences of their decisions?
Umpires make their calls based on split-second responses to their visual perceptions of what happens in front of their eyes, with no reflection on what implications their decisions have for anyone else, or the expectations held by the players whom they are watching. Think about it: would you want a judge to decide a case without considering the effects of his decision on the litigants and on the society at large?
Umpires make their decisions without hearing arguments from the players before rendering their decisions. Players, coaches, managers, or their spokesmen do not submit written briefs, or make oral arguments, to umpires in an effort to explain to umpires why justice requires that a decision be rendered in their favor. Umpires don’t study briefs or do research on decisions rendered by earlier umpires in previous contests. Think about it: would you want a judge to decide a case within the time that an umpire takes to call balls and strikes and do so with no input from the litigants?
Umpires never write opinions in which they explain (or at least try to explain) why their decisions are right and just after having taken into account on all the arguments advanced by the opposing sides and any other relevant considerations that might properly be taken into account in reaching a decision. Think about it: would you want a judge to decide a case without having to write an opinion explaining why his or her decision is the right and just one?
Umpires call balls on strikes instinctively, unreflectively, and without hesitation. But to judge means to think, to reflect, to consider both (or all) sides, to consider the consequences of the decision for the litigants and for society, and for future judges in future cases who will be guided by the decision being rendered in the case at hand. Judging — especially appellate judging — is a deeply intellectual and reflective vocation requiring knowledge, erudition, insight, wisdom, temperament, and, quite often, empathy and creativity.
To reduce this venerable vocation to the mere calling of balls and strikes is deeply dishonorable, and, coming from a judge who presumes to be worthy of sitting on the highest court in the land, supremely offensive.
What could possibly possess a judge — and a judge, presumably neither an idiot nor insufficiently self-aware to understand what he is actually doing — to engage in such obvious sophistry? The answer, I think, is that it has come to be in the obvious political and ideological self-interest of many lawyers and judges, to deliberately adopt a pretense that judging is — or should be — a mechanical activity that can be reduced to simply looking up and following already existing rules that have already been written down somewhere, and that to apply those rules requires nothing more than knowing how to read them properly. That idea can be summed up in two eight-letter words, one of which is nonsense, and those who knowingly propagate it are just, well, dare I say it, deplorable.
Uneasy Money 
Do you believe he should be on the Supreme Court? Have you reviewed any of kavanaugh’s 300 opinions on the DC circuit? If so, what are your serious concerns about his conclusions?
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He wrote an erroneous dissent in the Whole Foods merger case some years ago. And see my previous post on his atrocious refusal to disavow the Chinese Exclusion Case.
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David, respectfully, you’re way off here.
The umpire analogy is imperfect, but the basic idea, fairly considered, is unarguable. A case or controversy is between parties and occurs within defined parameters within which the evidence is supposed to yield a result. Somebody wins and somebody loses. There may be all sorts of wider implications, but they’re irrelevant. That’s why there’s a latin phrase, “fiat justitia ruat caelum”.
So you’ve got a negligence claim and some peon is terribly injured and the defendant is some big company and is represented by a prestigious law firm, and the judge decides that although the proof of negligence and injury is there, too much is at stake and there are too many peons who might come forward with similar claims and they could bankrupt the big company and that calls into question the value of the prestigious law firm, on which lots of jobs and people’s faith in whatever it is that makes the law firm prestigious depends, and so the judge tosses the lawsuit. What does the fate of some peon matter when balanced against all those other people who stand to lose out?
And this kind of decision making happens all the time from judges. And they are following your playbook, not acting as umpires but as nuanced decision makers acutely aware of the wider implications of their decisions.
And this is not only NOT good judging, it is corrupt judging, and it ill serves everyone.
The “wider implications” are for legislatures and executives to deal with. The judge and jury are there to resolve a dispute between discrete parties, applying rules even handedly.
There’s a little more nuance when you’re talking about appellate judges, but it’s not fundamentally different. There’s still a dispute between parties to be resolved. Indeed, “case or controversy” is a requirement for a court to consider issues in the first place. Courts do not decide policy matters in the abstract, or based on wider social consequences. Legislatures might do that.
There might be reasons to oppose Kavanaugh, but the umpire analogy is not one of them.
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Kavanaugh is undoubtedly a very overt political operator.
Nominees try to hide this as he was. He lost that last night ( our time).
your great problem is a very political court whereas ours downunder is a very black letter court!
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JMRJ, Thanks for your respect.
The umpire analogy does have a kernel of truth; if there were not a kernel of truth, it would not be so insidious. Judges have to seek justice, and have to impartial arbiters of the claims of the litigants, and may not favor one sider over the over because of their personal feelings about the litigants, just as umpires have to be impartial in making decisions about what they see happening in front of them.
Your example shows that there are some consequences of their decisions that judges may not take into account in reaching their decisions; it does not show that there are no consequences that they may take into account. In deciding whether to rule in favor of the plaintiff or the defendant in the case you posit, the judge would not appropriately consider the financial effect on the company or the law firm representing the company, but it would be appropriate for the judge to consider whether a decision in favor of the plaintiff could adversely affect the incentive of employees to take appropriate care in performing their jobs.
I don’t know what you mean by “this kind of decision making” is referring to so I can’t comment on whether “this kind of decision making” is or is not “following my playbook,” but I don’t see any connection between your concrete example and what I was talking about.
You assert that judge and jury may not consider the “wider implications” of a decision but must only apply rules even-handedly.
Oh, please! Haven’t you heard of the common law? Common law judges don’t just apply a set of rules mindlessly; they apply rules by taking into consideration broader principles of justice, just as was done in the famous case Riggs v. Palmer in which the court decided that the grandson who murdered his grandfather could not inherit his grandfather’s estate even though, according to the statute, the murderous grandson was next in line to inherit the estate, because of the common law principle that “no one may profit by his own fraud, or to take advantage of his own wrong, or to found an claim on his own iniquity, or acquire property by his own crime.”
nottrampis, Just one of our great problems, I’m afraid.
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David,
I wonder at your reaction the the nomination.
To my down under mind it is yet another example of Trump destroying institutions.
Having Kavanaugh on the Supreme court without due process ( which in this case would mean a lengthy and thorough investigation of horrifying charges means the Supreme Court will over time lose a lot of respect.
This is not a good thing to occur in a democracy
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nottrampis, Pretty much the same as yours. Very depressing.
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I take the baseball analogy in somewhat a Hayekian sense. The job of a judge is not to impose their personal scheme of social justice but to validate what would have been ex-ante reasonable expectations of what the outcome under the current legal order would be. Similarly in baseball if some strange and never-before-seen event were to occur, it should be resolved by asking what could most reasonably be expected to be the outcome under the rules and inherent logic of baseball. It should not be resolved by asking which team is more deserving of a point due to their difficult history, being an underdog, etc. And similarly with Riggs v Palmer, an unanticipated situation was resolved with reference to a legal dictum about the inherent logic of the common law.
I think it is a clever and useful analogy, since most Americans understand baseball better than Hayek.
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Roepke, Thanks for your comment. I don’t see any connection between what an umpire does — calling balls and strikes and deciding whether a catch or tag is made at a base before or after the runner reaches the base — and asking what could have reasonably been expected by the parties to a dispute the under the applicable rules. Deciding what are “reasonable expectations” is a matter of judging, not umpiring. By articulating what is a reasonable expectation under the rules, the judge is not simply applying the rules he is revising the existing rule in a way that will affect how people behave in the future. The judge has to consider how the new revised rule will affect how future disputes are resolved. I agree that judges should not decide cases based on which party to the case is the most “deserving,” but that doesn’t mean that judges should not be concerned with anything but applying a simple legal rule to the facts before them. They have to take a broad not a narrow view of the effects of their decisions. In real cases there are often conflicting legal rules or principles that could be called upon to decide a case; the judge is required to come up with the decision that is the best fit to the totality of legal rules and principles. That’s what’s known as legal reasoning with which calling balls and strikes has nothing to do. Hayek and Roepke would have been appalled.
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lame post. stick to economics and let the legal professors call the balls and strikes on qualifications of judges. you clearly have not studied the law.
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crispus, Thanks for sharing a well-reasoned dissenting opinion.
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Excellent observation that I haven’t seen elsewhere in the dissing of the silly “umpire” claim.
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