February 14, 2013
One of Chief Justice John Roberts’ most famous lines is the one he gave in his opening statement at his confirmation hearing in 2005, about the role of judges. “Judges are like umpires,” he said. “It’s my job to call balls and strikes and not to pitch or bat.”
A lot of people—mostly liberals—bristled at that line, in part because they thought it was too simplistic and in part because they recognized it as a thinly veiled shot at “activist judges,” which has been code for “liberal judges” since the 1970s. (Though some have argued that it is no longer an accurate description of the liberals.)
I bring up the Chief Justice’s line about umpires today only because I just happened to come across an interesting 1995 opinion by Judge Posner—a renowned appellate judge on the Court of Appeals for the Seventh Circuit, who was appointed to the bench by President Reagan and once considered a potential Supreme Court pick for the conservative movement. In this opinion, which involved a death sentence, Judge Posner said something that caught my eye.
The man on death row, Tommie Smith, was challenging the quality of his representation, and Judge Posner agreed that Smith’s lawyer “did an atrocious job.” Smith v. Farley, 59 F.3d 659, 665 (7th Cir. 1995). The lawyer had filed a brief that was 796 pages long (!)—most of it filled with “waived, hopeless, or irrelevant grounds of appeal.” Id. And the grounds for appeal that did have merit were “smothered in lard.” Id.
Nevertheless, said Judge Posner, the grounds for reversal had been raised—even if incompetently—and the court had considered those grounds properly before rejecting them. So there was no prejudice to Smith as a result of his lawyer’s incompetence. Id.
What I found intriguing was the approach to the case that Judge Posner endorsed. The incompetence of Smith’s lawyers (both at trial and on appeal) had put the judges in a position of having to look beyond the lawyers’ incompetent briefs and arguments for any reason to reverse Smith’s conviction. According to Judge Posner, judges have law clerks and “do not depend on counsel to find all the cases and all the reasons in support of the appeal.” Id.
To many, this might sound like Judge Posner was advocating a kind of “judicial activism”—reaching beyond what is argued by the attorneys to find reasons to decide a case one way or the other. It’s interesting because it’s coming from a prominent conservative.
And what really caught my eye was the judicial analogy that Judge Posner rejected in his defense of this approach: “Judges are not umpires, calling balls and strikes,” wrote Judge Posner. Id. Others might not like it that judges will go out of their way to “do the work of the weaker lawyers”—but “that is the way it is.” Id.
I haven’t tried to look it up, but I wonder if anyone ever brought up this Posner opinion back in 2005, in response to Chief Justice Roberts’ statements. Surely I can’t be the first to have found it.