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UNDERSTANDING MODERN JUDGES and JUSTICES: The CONSERVATIVE v. LEFTIST Disconnect and Disagreement

10/28/2020

Why Amy Coney Barrett is NOT the Kind of Justice the Democrats Want

There is so much incorrect terminology thrown around and so much careless discussion taking place in the media and among politicians that, in our view, probably fewer than 5% of voters even understand what the role of judges actually is.

Phrases are thrown around like: "they want a judge who is 'pro-life,' or 'pro-oil & gas,' or 'pro-environment,' or 'anti-[this or that[, or who 'supports' some policy or another. This is the language of the Left—indicating that judges have a distinct legislative role. It is not the language of the right, even though many right-of-center people employ, incorrectly, those same phrases. 

In the view of conservatives, while judges may have personal political views, they cannot be "pro" or "anti" anything at all in their role as a judge.

Unlike legislators, judges and justices are not presented with campaign-related issues: Shall we abolish the death penalty? Shall we restrict the manner in which abortion services can be offered? Should voters be required to show an ID?

Those are all questions that come before legislative bodies. Judges only entertain specific cases with specific facts and the specific points of law being argued about the facts of a given dispute or circumstance that gave rise to the case—the situation that caused the case to be filed.

Applying the Law that is on the Books v. Making up a New Law to "Make Things Better" 

Amy Coney Barrett is not the kind of justice the Democrat Party wants precisely because she "applies" the law, reading statutes, or passages in Constitutions as they are written, in plain English. The Left wants jurists who look at laws only as suggestions, or perhaps just as incidental starting points for public policy debate or discussion.

The two approaches clash all the time.

Recent Elections Law Cases Provide Excellent Exhibits. For Example:

A statute may read (as in New Mexico) that: 

Absentee ballots "shall be accepted until 7:00 PM on election day. Any...envelope received after that time shall not be qualified or opened..."

An entity, such as the Democratic Party (or Libertarian or Republican Party) in New Mexico (or in Wisconsin or Pennsylvania) may bring suit, demanding that the deadline adopted by the legislature be extended for any number of days—say, for example, six more days. The plaintiff or petitioner may claim that the statute is somehow “unfair” or “unreasonable,” or may come up with any number of reasons to set the statute aside.

A typical judge or justice, coming from the last couple of generations of law school, and certainly ALL judges and lawyers of the current American Left, including many, perhaps most, Democrat appointees (though to be fair, not all) will look at the case and the law and say:              

"Hmmm. I don’t much care for this statute. I’m not sure the legislature thought this through as well as I can by myself. I think I’ll rule that there shall be six more days added on to the deadline.”

A different Democrat court, looking at the same case, may say: “No. We think the deadline should be extended only three more days."

And yet another activist judge or three-member panel might rule that:

"No, we know best of all—the deadline should be extended for 30 days. Elections officials should count all votes received not later than 30 days after the deadline identified in statute.”

All of them will conclude in their own minds: “There. That’s what I call fair and just. I am a judge and I know best what should be done. The legislators simply don’t have as good a handle on fairness and justice as a trained lawyer and judge does.”

However, a justice or judge like Amy Coney Barrett will read the statute and conclude:

1) the law is clearly stated and understandable

2) there is nothing “unconstitutional” about the legislature making rules and establishing deadlines for the conduct and administration of elections

3) in a republic, it is the legislature that represents the people’s will (right or wrong, regardless of how we “feel” about the law) through the process of free and open elections

4) a court is not a legislature, did not participate in the debate, and has no role in writing bills, voting on their passage, or signing them into law

Court cases are not supposed to be about some judge's "druthers" or how they "wish" the law was written, or what "outcome" the judge prefers.

Personally, a judge might prefer some other deadline, or see ways in which she would write the law differently and “better,” but she recognizes that that is not her role as a judge.

This kind of thinking is anathema to Leftists. They want judges who will use their positions to hand down rulings that conform to the Left’s desired outcomes in a huge array of cases that can be brought. The Left finds entities that will file suits for the purpose of getting a judge to simply "enact" a law that is nowhere on the books, or that could not be passed in a legislative body. 

For example: “We want six more days added to the deadline. And a judge responds ‘Okay, you got it, six more days it is.’”

That is essentially what Supreme Court Justices Kagan and Sotomayor do on a regular basis. (Justice Stephen Breyer responds less “automatically” in this manner.) And Ruth Bader Ginsburg did the same as Sotomayor and Kagan.

for the American Left, Amy Coney Barrett is a terrible reminder to the people that the role of the judiciary and the role of the legislative branch are separate and distinct. She essentially is an exhibit that says: "Judges should stay in their own lane."

That's what the US Constitution says, and that's what all state constitutions say. If you want to change the structure of American government you should amend the Constitution. If you want to change state or federal laws, then go to your legislature or to congress.

Judges should not just make stuff up on the bench. That approach represents an enormous threat to the American Experiment.


Email us (at nmpj@dfn.com) with your feedback, comments, questions, and ideas.


Intelligent Political Discourse—for the Thoughtful New Mexican

 

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National Issues

National Issues

Democrats

2016 Presidential Campaign - Democrats

Republicans

2016 Presidential Campaign - Republicans

Jeb Bush gets religion.

"They said he got religion at the end, and I'm glad that he did."  — Tom T. Hall. The Year Clayton Delaney died.

Well, it's official.  Jeb Bush has changed quite of few of his positions on illegal immigration.  The single most significant is that he no longer endorses the "path to citizenship" for those who came here illegally. 

This is, after all, the key portion of any proposal aimed at "reforming" our existing illegal immigration situation.

No sensible citizen can see any point in trying to deport between 12 and 16 million people currently living in America illegally.  And no candidate for any office that we know of supports that.  What the average American wants is for the country to "get a handle on it."  They want it stopped, our borders secured and future illegal immigration prevented.  It is a national security issue.

The Path to Legal Status

The only way to accomplish the above goals, is to identify current illegal immigrants, get them accounted for, have them documented, and placed on a path to legal status.  Neither they nor their children or spouses should live in a state of fear or anxiety.

But a path to "citizenship" is not the right course.  It is not morally or legally correct.  A merciful and compassionate nation can provide the safeguards of legal status without sending the message to the rest of the world that all you have to do is cross our border and you will eventually get to become a citizen, thus circumventing the legal framework scores of millions of Americans have followed, honored and respected.

If someone who is granted legal status eventually wants to become a citizen, that person should have to return to his or her country of origin and wait in line like 20 million people around the world are doing at any given time.  Failing that, America will forever send the signal that anyone in the world can "jump the line," and that there is no reason at all to obey our immigration and naturalization laws.

We Like Jeb Bush

We are glad Jeb Bush has learned this lesson.  He is a fine speaker, and can eloquently explain his positions on complex issue.  If he were not named "Bush" he would be an actual top tier candidate—in all that that title would entail, including likelihood of acceptance and support of and from the American people in the primaries, and in any theoretical general election.  

We also recognize that he already is a de facto top-tier candidate because of his fame and his fundraising.

If he were to be the nominee of the Republican Party we would heartily support him and endorse him.  We hope, however, that he is not, as he does not give the center-right coalition the best chance of winning.

Media Watch

Media Watch

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Judicial Watch

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Movies, Television, Pop Culture

  • Movies, Television, Pop Culture
    Selma   ????? We have now seen the Oscar-nominated movie Selma.   Our earlier allusion to criticism that sounded as though it was in an Oliver Stone category for historical fabrication is some...

Sports

Sports

The Major League Baseball Playoffs are not realistic, and destroy the actual meaning of the sport. 

Major League Baseball is unique in this respect—its postseason is markedly different from the way the game is played normally.  No other major league sport suffers from this flaw.

Not that much is wrong with baseball. In some respects it's the most well thought-out sport there is.  The "perfect game" many aficionados say.

But the Major League Baseball postseason experience is unique in the world of professional sports, and not in a good way. 

In fact the playoffs are flawed in such a way as to detract from the sport itself and diminish the game and what it means to be the world champion of the sport. 

Among the Big Four team sports of North America: football, hockey, basketball and baseball—and all the 122 professional major league teams competing in the NFL, NHL, NBA and MLB respectively—it is in baseball alone that the postseason turns the sport itself on its head and makes it reflect something that it is not.  This article will explain why that happens and why it is wrong-headed.

 

Background on the The Frequency of Play

The 30 teams in both the National Hockey League and the National Basketball Association teams play a very similar schedule.  On average, each team has a day off between games, sometimes two days off.  Though there are back-to-back games, they are relatively infrequent.  NBA teams play between 14 and 22 back-to-back games a season, and for the NHL it usually ranges between 9 and 19. The NFL has a full week between games, the exception being the new Thursday games that each team plays once, leaving them only four days' rest once a year.

But baseball players play every single day.  Ten days straight, then a day off, then seven more games, then a day off, then ten more games.  Typically a baseball team plays 27 games every 30 days.  For the NHL and NBA it would be 14 per month, and for the NFL the number would be 4.

 

Getting to the Playoffs:  It's a grind

In all four sports, getting to the postseason requires a total team effort—in fact an all-out total organizational effort.  Teams must be deep, have bench strength and the capability of moving players in and out of the lineup, and on and off the roster, who can take the place of key players who go down for an injury, or who have to miss games for whatever reason.  While this is true of the other three major sports as well, it is most certainly even more of a concern for baseball teams because of the sheer volume of games in which a team must field a competitive lineup.

Each league's regular season* is a marathon, not a sprint.  NFL teams play for 17 weeks, 16 games.  The NHL has an 82-game season over six months, paralleled by an NBA season of 84 games over the same timeframe. Baseball is the biggest marathon of all—a true test of resilience and endurance—162 games usually starting around the beginning of April and finishing about the end of September.

NHL teams carry 23-man rosters, of which 20 can be active for any particular game.  The NBA is similar, with 15-man rosters of which 13 can be on the bench for a given game. In the NFL, the teams have 53 players on a roster, but only 46 can suit up on game day.  In Major League Baseball, teams have a 25-man active roster, and all 25 are at the park every day.

 

The Postseason Playoffs:  Sport by Sport

The National Football League:

Of the 32 teams, 12 qualify for the playoffs.  The playoffs are conducted in the exact same manner as the regular season.  Each team plays once a week, the exception being that the four top teams get the first week off.  For a typical qualifier to reach the Super Bowl, the team must play three consecutive weeks.  At that point both remaining teams have two weeks off before the Super Bowl.

In short, the playoffs, with a game each week, reflects the same means of advancement as is present in regular season grind.

The National Hockey League: 

16 of the 30 teams qualify for the postseason.  The playoffs are conducted in the exact same manner as the regular season: a game, a day off, a game, a day off, a game, a day off, and so on.  Just as in the regular season, there are occasionally two days off.  But the playoffs require the same stamina, the same approach as that required to make the playoffs.

 

The National Basketball Association

16 of the 30 teams qualify for the postseason.  The playoffs are conducted in the exact same manner as the regular season: a game, a day off, a game, a day off, a game, a day off, and so on.  Just as in the regular season, there are occasionally two days off.  But the playoffs require the same stamina, the same approach as that required to make the playoffs.

Major League Baseball

10 of the 30 teams qualify for the postseason.  (Although four of those teams qualify only for a one-game do-or-die play-in game.)

Here is where all similarity to baseball ends. 

Unlike the other three sports whose playoffs mirror the test of the regular season, and whose conditions are the same as the regular season, Major League Baseball playoffs in no way resemble the sport itself.  In hockey, basketball and football, the teams win playoff games and reach the pinacle of the sport in exactly the same way that they qualify to try to do so. 

Not so in baseball.  They are two entirely different concepts.  Teams make the playoffs only because they have depth, five-man pitching rotations and can play day-in and day-out at a high level.  But the baseball playoffs suddenly become a kind of "all-star" game within each team's roster.  MLB playoffs are conducted in a way that more closely follows the NBA and the NHL.  Teams have enormous numbers of days off. 

Here's the key point:  No Major League Baseball team could even qualify for the postseason if they played the same way during the regular season that they do in the playoffs.  None.

In the regular season Major League Baseball teams have to use a 5-man starting rotation, with pitchers pitching every 5th day.  There are not enough days off to have even a four-man rotation, let alone a team with three pitchers.  Even the best team in baseball using only a 4-man rotation, would wear them out, and most likely end up with a record of something like 66-96, or 70-92—and that would be if they were otherwise teh best team in the sport.

 

The 2014 Baseball Postseason is Typical

As examples, last year's World Series teams the Kansas City Royals played only 15 games in 30 days, and the San Francisco Giants played only 17 games in 30 days.  The 12 to 15 days off in the non-baseball fantasy world of the MLB postseason, means that teams can turn to three pitchers and give all of them plenty of rest.  But it isn't the way baseball really works.

At one point, the Royals had 5 consecutive days off, and the Giants had 4.  This never happens in the regular season.  Even the All-Star break is only three days.  Very rarely is there anything beyond a one-day break, and even that happens only a couple of times a month. 

What this means is that neither team used the team that got them to the playoffs.  (The NFL, NBA and NHL teams ALL used the very same teams that got them to the playoffs.) 

Baseball teams use a three-man pitching rotation in the playoffs.  Sometimes, they essentially opt for two pitchers only—conceding the likelihood that some of their games are going to be lost—when their third-, or rarely fourth-best pitcher has to face one of their opponents' two-man or three-man rotation members. 

Imagine an NFL team using only one running back and three wide receivers, instead of rotating through their roster in the course of a playoff game—or using only 4 defensive backs and 4 linebackers, instead of rotating 8 or 9 DBs and 6 or 7 linebackers?  In hockey, would a team use only two or three of their forward lines?  Would an NBA team use only the starting five?  They would never make the post season if they tried to present that product to their fans during the regular season.

Those are the equivalents of what Major League Baseball sets up every fall.  No other sport drags its playoffs out in such a way as to completely change the playing field—completely change the dynamics of its game.

Why Does Baseball Do This?

MLB does this because the TV networks want to drag out the games so that they can try to have one game each day  This requires an unnecessary staggering of games, and creates the phenomenon of 15 off-days in a month.

What about travel days?

What about them?  Baseball has travel days constantly.  A team may play in Chicago one day and in Miami the next, or in New York one day and Phoenix the very next day.  Travel days as a routine part of the game are again, a phenomenon of television, and stretching out the playoffs.

In years past, travel days were employed only when necessary. The famous "subway series" games were played on seven consecutive days.  Why?  Because there was no "travel day" required to go from Brooklyn to the Bronx.  Today, they would put in artificial travel days.

Even fairly long train trips didn't necessarily matter.  The 1948 World Series between the Cleveland Indians and the Boston Braves was played in six consecutive days, October 6 & 7 in Boston, October 8, 9 & 10 in Cleveland, and October 11 back in Boston.

This reflects actual baseball, the way the teams play day-in and day-out, and the kind of unique test that baseball presents to its athletes, its managers and management, and to its fans.

In the modern world of charter planes, teams fly from coast to coast to play games on consecutive days.  The artificial "travel day" should be eliminated so that teams can play in the playoffs in the same way that got them there in the first place.


*All these leagues also have pre-seasons and training camps, which add an additional 6-8 weeks to each player's year.


Email us with your feedback, comments, questions and ideas. 

Religious Issues

Religious Issues

  • Religious Issues
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