Bench Memos

Former Judge Vaughn Walker on “Moving the Strike Zone”

Chief Justice Roberts’s analogy of judging to umpiring obviously did not intend to provide a comprehensive account of what judging entails. Rather (as Ramesh Ponnuru explained more fully in this National Review essay), the Chief Justice’s analogy memorably captured the judge’s duty of impartiality.

Anyone who overstates what the Chief Justice’s analogy was intended to convey can find ample ground for disputing the aptness of the hyperextended analogy. So it’s no surprise that former district judge Vaughn R. Walker, whose consistent pattern of malfeasance in the Prop 8 case amounts to what may be the most egregious performance ever by a federal district judge, makes some sound observations in his recently published lecture titled “Moving the Strike Zone: How Judges Sometimes Make Law.” That said, it’s quite telling—and explains a lot about his Prop 8 misconduct—that Walker summarizes his view of what judges “must do” as “take account of the pitcher and the batter in the legal arena, watch the windup, the throw, the curve, and the delivery and then, where they believe appropriate, move the strike zone.” (Page 1223 (emphasis added).)

There’s the basic choice: between a judge who understands his obligation to be to impartially call balls and strikes against a pre-defined strike zone and a judge, like Walker, who considers himself free to “move the strike zone” whenever he believes it “appropriate” to do so.

H/t Josh Blackman.

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