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Judges Are Umpires

Baseball Umpire
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Kerby Andersonnever miss viewpoints

The actions by Judge Emmet Sullivan in the Michael Flynn case provide a clear example of what is often wrong with the judiciary today in America. Perhaps the best short commentary about this comes from Alan Dershowitz, professor emeritus at Harvard Law School. He has been on my radio program a few times, and I am continually impressed by his willingness to address issues his fellow liberals so often ignore.

If you are not familiar with the case, the latest actions are easy to summarize. Attorney General William Barr announced that the Justice Department would drop the charges against the former National Security Adviser. It is not surprising that former Department of Justice officials have criticized his decision. But what is surprising is the decision by the judge to keep the case going and invite outsiders to weigh in with their legal briefs.

Consider what is happening. The prosecution has decided not to pursue charges. It would be appropriate to say that the prosecutors and the defendant have agreed that the case should be dropped. That should be the end of it. Alan Dershowitz argues that once that decision is reached, “the court loses it constitutional authority to do anything but formally enter an order ending the case.” There is no controversy to decide.

He laments that many judges want more power than the constitution provides. “Not happy being umpires, they want to be commissioner of baseball.” They have “invented exceptions to give themselves jurisdiction over cases in which there is no longer any controversy between litigants.”

If someone thinks this is a miscarriage of justice, they can write editorials, or they can sign open letters or petitions. They can even have Congress investigate. But judges cannot exceed their constitutional power. We expect them to be umpires and nothing more.

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