When the 'Umpire' Is Playing for the Other Team

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In state courtrooms, a broken system leads too many judges to call balls for one side and strikes for another. (First in a three-part series)

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Jonathan Ernst/Reuters

Seven years ago last month, the man who would be Chief Justice of the United States, a man who had devoted his entire adult life to the study of the law, tried memorably at his cordial confirmation hearing to describe to hundreds of millions of his future litigants what a judge actually does when the gavel hammers down. "Judges and justices are servants of the law, not the other way around," John Roberts told the Senate Judiciary Committee in September 2005:

Judges are like umpires. Umpires don't make the rule; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is limited role. Nobody ever went to a ball game to see the umpire.

Despite all that he has written and done since he ascended to the United States Supreme Court, despite what he did just this past June by delivering a viable Affordable Care Act to its supporters while limiting the Commerce Clause for future cases, Chief Justice Roberts is known for that quotation. It's fair to say that it is the most famous thing this very famous man has yet said, and no matter what happens to his career or the Court from here, it's almost certainly a quote that is going to make it one day into his obituary in the New York Times. "The judge, who once likened judges to baseball umpires...." And so forth.

We now know that John Roberts has a very different perception of the nature of baseball umpiring than do many of the rest of us. So far in his tenure, with a few notable exceptions including the one above, he has called mostly balls for one team and mostly strikes for another. And ties in doctrine or statutory construction have "gone to the runner" only if you consider the runner to be corporate interests. The U.S. Chamber of Commerce, for example, was 7-0 at the Court last term before the health care ruling. It's good to be Big Business in the batter's box. It's not so easy to stand in if you are a litigant opposing a corporate interest.

Court watchers far smarter than me have parsed the Chief Justice's "umpire" analogy. I'm using it here only to springboard into a short series this week on the dismal state of America's state court judges. These "umpires" have always been the most perilously perched of judges, the most susceptible to mob mentality, because they don't enjoy life-tenure. But now, whatever independence they still have is being threatened: by special interest groups, by radical politicians, and even by some of their own -- judges who trade both in honor and integrity by begging for votes (and campaign contributions) from the very litigants before them.

The result is truly disconcerting. For centuries, we've been taught that, when we go to court, we will find a fair, unbiased judge who will weigh the evidence and evaluate the law without fear or favor. We have been told that the mere appearance of judicial impartiality is a vital part of the due process guarantees of the Constitution. This has always been a bit of a lie. The playing field always has been tilted toward entrenched interests. But now the gulf between what impartial justice is supposed to look like and what it actually is for hundreds of millions of Americans is vast and widening. And no one seems willing to stop it, either.

PART I: TAKING AWAY POWER AND AUTHORITY

For decades now, but especially over the past two years, coinciding with the election of Tea Party officials in the 2010 midterm elections, conservative lawmakers in state houses around the country have systematically sought to undermine the power, authority, and independence of their judicial branch colleagues. Recently, some of this was tied to passionate opposition to the Affordable Care Act. Some of it comes from old-fashioned hatred for so-called judicial "activists" on the bench. But at the root of all of it is a deeply-felt philosophy, one which goes back to Jefferson, that an "independent" judiciary should never really be too independent.

In part, this legislative offensive has focused on restraining the authority of state judges to perform core judicial functions. So conservatives in Missouri sought to preclude their judges from enforcing the Affordable Care Act. In Kansas, Tea Party forces moved to prohibit state judges from citing "foreign law" in their rulings. Lawmakers in Louisiana sought to protect gun rights even further by requiring state judges to evaluate gun restrictions using only the strictest form of judicial review. In the same vein, legislators in New Jersey pushed a measure that would have given them "override" power over state court decisions.

This is an act of war by one branch against another, a partisan attempt to help certain litigants at the expense of other litigants

Similarly, Oklahoma lawmakers had a bright idea earlier this year. Instead of permitting state judges to continue to interpret constitutional issues, the legislature would establish an "Ad Hoc Court of Constitutional Review' to handle the chore. Elected officials in New Hampshire and Tennessee considered similar measures. These episodes (and there are many more chronicled at the National Center for State Courts' laudable Gavel to Gavel website) are not traditional power struggles between branches of government. They are partisan efforts to change the rules of the game -- to neuter the power of judicial "umpires" even before they make a call.

Another element of the assault on state judiciaries has been an increased range of "impeachable" offenses available against judges. Suddenly, serious extrajudicial misconduct is no longer a prerequisite for impeachment. Suddenly, in New Hampshire and elsewhere, it could be the substance of a court ruling, in and of itself, which becomes the "misconduct" upon which the "impeachable" offense is based. As William Raftery well chronicled last December, "2011 saw more efforts to impeach or otherwise legislatively remove judges from office than at any point in recent history, indeed perhaps in all of U.S. history."

Yet another prong of the fight focuses on how judges are selected. In November, voters in several states will be asked to vote on complex issues involving state judicial nominating committees. As Andrew Blotky and Todd Phillips of the Center for American Progress pointed out last month, conservative lawmakers are systematically seeking to change the way state judges are initially selected, either by giving the governor's office more power over the process (Missouri); by giving lawmakers the power to confirm judicial appointments (Florida); or by dissolving bipartisanship requirements currently contained in court nominating rules (Arizona).

WHAT IT MEANS

Usually it's federal judges who draw fire from from these quarters. But aside from the silly rhetoric of the Republican presidential primaries, that's an increasingly tough argument to make. Going back 35 years, federal records reveal, Republican presidents have appointed 176 federal appeals court judges; the Democrats have appointed just 140. Republicans have successfully nominated 7 Supreme Court justices; the Democrats only 4. Democrats have an edge only in trial court appointments, where they lead the Republicans over the period 611 to 559. By this measure, and regardless of it, today's federal bench is remarkably even.

And as busy as federal judges are these days, as much as their dockets have increased as federal criminal and regulatory law has expanded, as much as they stand as a symbol when they resolve social cases of great international significance, the truth is that the vast majority of litigation in America takes place in state courts. It is there were most criminal cases are prosecuted, where our contract disputes are hashed out, where our domestic cases are heard and where negligence cases unfold. There were, the NCSC reported, 103.5 million cases filed in state court in 2010. By contrast, "only" about 2 million federal cases are filed each year.

This means, for most Americans, that the "umpire" they see when they go to court, if they go to court, will be a state judge. The aforementioned lawmakers, who seek to limit the power of judges to decide cases, are the players seeking to preclude the "umpires" from making certain calls on the field. The legislators who seek to impeach judges for particular rulings are the players seeking to have "umpires" fired for calls with which they disagree. And the partisans who seek to rig judicial selections are the players who want to pick and chose which umpires get to play the game. How would you like to be on the "other" team?

Indeed, none of this is fair and all of it is bad. Bad, especially, for the perception that judges should be as free as is humanly possible from undue political pressure and overt legislative retaliation. For as long as there have been judges, there have been legislators to overturn judicial rulings. Indeed, for centuries, judges often have begged lawmakers to "overrule" them by fixing bad laws. But what's happening above is an altogether different matter. This is an act of war by one branch against another, a partisan attempt to help certain litigants at the expense of other litigants by trying to restructure the judicial branch itself.

John Roberts was right to say that "nobody goes to a ball game" to see an umpire. But state judges decide tough cases because they have to decide tough cases -- because the litigants before them, be they individuals or corporations, prosecutors or defendants, have failed to resolve their conflicts short of court. It should be axiomatic that judges can't get out of the way of interpreting the law. The question hundreds of millions of Americans now face, whether know it or not, is whether they are comfortable allowing their own lawmakers to push those judges out of the way in the name of high ideology or low partisanship.

This is the first in a three-part series on how the authority and integrity of state court judges are being imperiled by radical legislation, political campaign contributions, and judicial elections.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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