Reflecting Upon What You Want to Accomplish as a Judge

When your career is over and you look back on what is it that you would like to say about what you accomplished, one thing is, I was fair (check). Fairness means you gave voice to the people who appeared in your court. Those people left your court understanding what you decided and why you decided it. I communicated well in either what I said or what I wrote (check). I took the opportunity to use my position as a judge to leave the justice system a better place? There are judges who may not put a check here.

There is in interesting new article written by Jessica Roth (Yeshiva University – Benjamin N. Cardozo School of Law) that begins:

The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire. For too long, too many judges (including me) have been too quiet about an evil of which we are ourselves a part: the mass incarceration of people in the United States today.

You do not have to agree fully with Chief Justice Roberts’ insistence that Supreme Court Justices never do anything but call balls and strikes to believe that, most of the time, judges should try to act as umpires, not players. When the ground rules are relatively clear, the strike zone is well-defined, and the game is working well, an umpire/judge should seek to apply the rules fairly and blend into the background. What should happen, though, when an experienced umpire/judge believes that the rules are harming the game, threatening one or more of the players with serious injury? Notwithstanding Justice Roberts’s insistence that “nobody  ever went to a ballgame to see the umpire,” over the last decade, a cohort of well- respected and experienced federal trial judges have engaged in an unmistakably public campaign for criminal justice reform that causes them to look more like players than umpires.

So, you may be thinking, “I am not a federal judge (and am not likely to be one) nor I am a family court, limited jurisdiction, or civil trial court judge…so why read an article about the escapades of Federal District Court judges?” The answer is, because we become better judges by occasionally putting a question mark on things we have for too long taken as a given.

The article is: The ‘New’ District Court Activism in Criminal Justice Reform (NYU Annual Survey of American Law, Forthcoming) on SSRN. Here is the abstract:

Historically, the debate over the judicial role has centered on the constitutional and administrative law decisions of the United States Supreme Court, with an occasional glance at the Federal Courts of Appeals. It has, moreover, been concerned solely with the “in-court” behavior of Article III appellate judges as they carry out their power and duty “to say what the law is” in the context of resolving “cases and controversies.” This Article seeks to deepen the discussion of the appropriate role of Article III judges by broadening it to trial, as well as appellate, judges; and by distinguishing between an Article III judge’s “decisional” activities on the one hand, and the judge’s “hortatory” and other activities on the other. To that end, the Article focuses on a cohort of deeply respected federal district judges-many, although not all, experienced Clinton appointees in the Southern and Eastern Districts of New York–who, over the last decade, have challenged conventional norms of judicial behavior to urge reform of fundamental aspects of the federal criminal justice system. These “new” judicial activists have made their case for reform in the pages of their judicial opinions, often in dicta; in articles and speeches; and through advocacy within and beyond the judicial branch. This Article summarizes this activity, places it in historical context, and assesses its value as well as its risks.

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