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Is Lady Justice Striking Out?

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Back during his 2005 Senate judiciary committee confirmation hearings to become the Chief Justice of the United States Supreme Court, John Roberts tried to allay Democratic senators’ fears that he was a conservative ideologue by famously comparing the role of judges with baseball umpires and declaring, “It’s my job to call balls and strikes and not to pitch or bat.” By likening his job to that of a home plate umpire who has little discretion to “interpret” pitches, Roberts was painting the law as something that is “objective” and “non-partisan” and not, to momentarily switch sports analogies, a “political football.” That alleviated concerns, or hamstrung objections, to Roberts, whereupon he was confirmed and promptly took his place on the bench as a reliable member of the conservative wing of the court (with a few exceptions, the most notable one being the swing vote affirming the constitutionality of the Affordable Care Act).

It’s impossible to know if Roberts believed his “umpire” analogy, or if he even believes it still. What made it palatable at the time is that it fit with how most of us prefer to regard the judicial system: above allowing the personal biases of the judges to topple what legislators have decreed. At worst, torturing the sports metaphors still further, some judges might have an “expanded strike zone,” allowing for a liberal interpretation and others a more restrictive “narrow strike zone” but even in those cases, the judge/umpire equally applies that zone to both teams. “Agendas” are antithetical to the strike zone. Unless you’re Antonin Scalia. The guy is so open and brazen about his predilections, you just shake your head and go, “That’s Antonin. Whaddaya gonna do?”

If at those confirmation hearings Roberts had instead compared judges to home team sportscasters, unapologetic partisans for the side that hired them, it’s pretty unlikely he would’ve gotten the job. Yet, in reality, whether a particular law is called a “strike” or a “ball” (constitutional or not) often depends on which team the majority of judges ruling were appointed by – the Democratic Lefties or the Republican Righties. It’s so taken for granted that, even as the New York Times declares that history is “full” of examples of judges who defied the expectations of the elected official who appointed them, it cites the well-worn case of the first President Bush being unpleasantly upended by David Souter, who is brought up in this context as often as folks who argue that Hollywood isn’t just a bastion of left-leaning liberals dredge up Kelsey Grammar and Chuck Norris, because, well, there really aren’t that many others.

Yet somehow it still seems “wrong.” The United States Constitution is supposed to stand for inviolate principles, not malleable vagaries. But what are we to make of it when great constitutional issues like voting rights and the right of corporations to pour unlimited money into political campaigns are too often decided by one vote majorities aligning with whichever political party held an advantage in determining the court’s make-up at the time?

I’m bringing this up because last month, the New York Times remarked that one of the most enduring and profound – but least noticed or understood – legacies of President Obama’s time in office is that for the first time in more than a decade, judges appointed by Democratic presidents considerably outnumber judges appointed by Republican ones, including nine of the 13 US Courts of Appeals, up from but one when Obama took office.

Moreover, the advantage and rate of increase has accelerated since senate Democrats employed the so-called “nuclear option,” which stopped Republicans from routinely filibustering Obama’s nominees.

The Times noted that this shift will likely have wide-ranging ramifications when the courts decide cases before them regarding health care, climate change, immigration reform, gay marriage, and other divisive issues. With Congress at almost a complete gridlock and Obama increasingly willing to issue controversial executive orders on a host of matters, the courts, if they rule as widely expected, will almost function as a quasi after-the-fact legislative branch, “passing” Obama’s reforms after he unilaterally signs them.

The whole rationale for the judge appointment process not being subject to elections is to ensure their independence and inoculate them from being pressured by momentary prevailing vicissitudes. But if they rule as predictably for one side as most legislators vote, that rationale seems imperfect, at best.

In some ways, it’s a good thing that the public doesn’t pay much attention to the judiciary. If the public perceived that it was as overtly partisan as the other two branches, justice, as Chief Justice John Roberts might put it, will have “struck out.”

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