RightWisconsin | Esenberg: JUDGE BRENNAN AND CALLING THE LEGAL BALLS AND STRIKES

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Rick Esenberg, president and general counsel at WILL writes at RightWisconsin on the eminently qualified Judge Michael Brennan to serve on the US 7th Circuit Court of Appeals:

As to those musings, it is important to remember that we are talking about law and not politics. Senators have this way of asking judicial nominees whether they will act in ways that advance certain political objectives. Will they help the middle class? Advance the interests of minorities? Be tough on crime? These are the wrong questions.

Policy is made by our elected officials. Courts exist to ensure that it is made in a way that is consistent with our highest law – the Constitution – and to determine that the law is being applied as enacted. To repeat the famous quote from Chief Justice John Roberts, judges call balls and strikes, they don’t make the rules or play the game.

Many have criticized the Roberts analogy because interpreting and applying the law is far more complicated than calling balls and strikes. Still, he’s essentially right and I like to illustrate the story with one I heard from another lawyer. Think of three umpires. When asked how they call balls and strikes, the first says that he calls them as they are. The second, a bit humbler, explains that he calls them as he sees them. The third responds, with a sly grin, that they are nothing until I call them.

When it comes to judges, we want that second umpire. We want someone who believes that there is a strike zone and, as difficult as calling balls and strikes may be, that’s all he’s there to do.

And that’s Michael Brennan.

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