Activist Judging

One of the strangest things about competitive debate is the inordinate pressure on the judge to get the decision "right." Judges are struck, dismissed, sent to "bad rooms," preferred low, or made fun of behind their back for their inability to judge the debate "the right way." Such a judgement of judges is only possible if one maintains a very strict ideology of what things in a debate work and which ones don't. This is a minority view of debate among scholars, who almost universally agree that debates are situational, fluid, audience-dependent, events. The speakers work hard, under pressure, to please the judges to get the result they want. 

But in collegiate debates we often see debaters berating their judges for being unable to make the correct decision. This is a very strange reversal of the way debate within democratic institutions function. We have the image of the candidate, or the persuader, nervously planning how she is going to get the audience to her side, carefully selecting arguments and evidence that will appeal to that audience, and feeling bad if the audience decides to go another way. What collegiate debate presents is a non-democratic model, something akin to North Korean politics, where if the public does not get what the speakers are saying they are punished for being enemies of the state. 

There is one exception that could redeem collegiate debate from its strange association with totalitarian rhetoric, and that is to argue that collegiate debate associates itself with the democratic practice of law. This makes a lot of sense: In the United States, collegiate debate in the 1960s saw sweeping changes to its performance and its rules for operation based solely on the numbers of law students and legal professionals who believed in debate and wanted it to reflect legal argumentative practices. Things like blocks, the structure of the Disadvantage, procedural arguments, and the like could have come out of this transition, along with the establishment of "flowing" and line-by-line argumentation. Other countries might have similar traces present in the history of their formats, but I doubt it - many other countries locate the heart of debate, or the ideological model of debate in the legislature instead of the judiciary.

The better argument (or easier to prove without a lot of archival work) is to make the connection of debate to the judicial through the presence of stare decisis. This is standard American jurisprudence, but appears in many different legal traditions. It is the belief that matters that have already been decided should guide decisions on future matters.  If evidence of type X was considered to be inadmissible in a particular type of case, that evidence should be ruled inadmissible in other future similar cases. The law should be consistent, and should provide reasonable people expectations of how their cases would be considered by the court. The presence of these decisions as a part of legal record allows lawyers (and others) to construct arguments as to whether one case should be decided this way or that. 

Debate's pressure on the judges to get it right is the functioning of a stare decisis on the ideological level. The lack of presence of textual records of judge decisions limits access to legal-types of argumentation ("The judge in the semifinal last month decided this or that phrase was important to the extension being established"). I believe this to be incredibly dangerous for debate, no matter how you articulate the value of it. The danger comes from replacing reason, and reasonable argument, with the ideology of what is reasonable and fair. That ideology comes to debaters from their history, their experiences, and the comments of judges from the past. The ideology is built on the idea that debaters are working to improve, and each decision provides evidence on how to get better. Each debater is deeply involved in a stare decisis that has no textual trace, nothing written about it, but an oral tradition that may or may not be respected by those who will judge you in the future. It definitely won't be respected by those outside of the insular debating community. A stare decisis on how to judge debates with no intersubjective verification except by those who have "won enough" or who "break" as judges, rooted purely in a semi-shared ideology of "what good debates are" is nearly cult-like. It's inaccessible to those outside of that identity, and once one gets inside that identity, one is heavily invested not to disrupt it. As a university sponsored and supported activity, even if in name, there is something really disturbing about this practice, and how everyone accepts it as not only normal, but the best way to run a debating competition.

The solution for this is activist judging - something I can't wait to try once I stop tabbing so many events. Activist judging can be understood as judges "legislating from the bench," making decisions based on what's good for justice in their view even if that judgement neglects the legal tradition in some way. This is not "trashing" the law, as the critical legal studies movement would advocate, nor is it willful ignorance. In debate, this means the judge focuses on the larger picture of good argumentation, reason, and support that would work outside of the debating tournament, outside of the community of debaters. Their fidelity is to larger questions of persuasion, argument, evidence, and the like, and not to what works as a whip, or what works as an extension - those elements are important for fair competition, to be sure, but they are subsets of a larger practice that the entire democratic world depends on for good governance. Getting it right in a debate is not nearly as important as getting it persuasive for the reasonable person - and yes, reasonable people exist who make excellent decisions and have never attended a debating competition.

This is a difficult task as debate communities worldwide have placed the preservation of the fairness of the contest above any other potential value in their motions and in their judgement. It doesn't strike anyone as odd that debates about EU policy regularly occur just mere meters or sometimes a building away from a department that employs experts in these issues, yet we never invite them to our competitions. They are not necessary. We are not, as a collective, interested in persuasion or argument. We are interested in providing fair boundaries for a debating competition. The activist judge provides perspective for the debaters, a reasonable check on argumentation strategies that win debates but remain unpersuasive to broader audiences. Activist judging is to invite such scholars to the competition, or encourage conveners to do so. They are the ones who not only practice associative reasoning to larger communities in their competitive judging, but also within the communities that debate exists. The university, scholarly, student, and intellectual communities at the campuses where debate competitions take place are regularly unaware that such events are happening. Activist judges work to include these communities in competitions in whatever way they can.

Why reinvent the wheel? Debate competitions based on reason and persuasion are fun. They don't require people to show up with little more than interest and desire for rhetorical challenge. Detailed briefings and guidebooks are not necessary to practice reasoned discourse. Only topics and rooms and judges are needed who are willing to practice an open-mindedness toward persuasive potential. Activist judging can point this out. Activist judging puts the practices of debate under question by the larger societal norms and practices of persuasion. They don't vote for unpersuasive arguments that are part of the debate culture, the ideologically appropriate examples or what have you. They are happy to intervene and make decisions based on what debate competitions should keep at their core: "As a reasonable person, I simply wasn't persuaded by that argument." The absence of this phrase from RFDs does not give a good signal for debate's future, as it peels its relevance away from larger communities in order to stick its own small community better together in homogeneity of practice.