Introduction
The notion of “judge kick” is a relatively controversial argument among the debate community. It usually refers to the ability of a judge to jettison a negative counterplan after the debate and instead vote negative in favor of the status quo if they conclude the counterplan is uncompetitive or less desirable than the status quo.
For example, let’s say the 2NR goes for a courts counterplan, an agency tradeoff disad, and a smattering of case defense. The 2AR attempts to answer the case defense and tradeoff disad and goes for a court politics disad against the counterplan. Suppose the judge concludes the risk of the court politics disad and affirmative advantages outweigh the negative tradeoff disad, but that the affirmative advantages alone do not outweigh the tradeoff disad. If the judge were to kick the counterplan for the negative, it would be a clean negative victory: the affirmative would not be more desirable than the status quo, so the judge votes that the tradeoff disad outweighs. However, if the judge didn’t kick the counterplan, the aff would win because the plan is comparatively more desirable than the counterplan. In this situation, the counterplan is actually a liability for the negative, because it is generating offense for the aff through the court politics disad.
It’s situations like this which make it easy to understand why so many hate judge kick. The aff made a strategic choice to generate offense against a counterplan and the negative made the choice to go for the counterplan in their final rebuttal. Even though the aff might have won their offense, the negative can still win the debate. Opponents of judge kick compare it to the worst abuses of conditionality, it becomes much more difficult to generate offense against negative advocacies if that offense can only beat a counterplan, not win a debate. Rob Glass, Assistant Director of Debate at the University of Houston, argues that judge kick “produces a dearth of depth, and makes all of the ’70s-’80s hand-wringing about Condo come true.”
However, to understand why judge kick is so prevalent and widely accepted, we need to look at the history of how it emerged. The goal of this essay is not to list every possible benefit and disadvantage of judge kick, but rather to consider judge kick in its appropriate historical context and offer new ways of thinking about this argument.
Judge kick has a fairly intuitive justification: that a judge, if they are deciding matters of policy, should not have to vote for a policy worse than the status quo. Therefore, if the judge concludes that both the plan and counterplan are undesirable, then they should still vote negative not in favor of the counterplan, but in favor of the status quo. Another of judge kick’s most popular justifications is that it’s a logical extension of conditionality. In other words, if counterplans are conditional and thus can be jettisoned at any time in favor of the status quo, it makes sense that the status quo is also an option for the judge after the debate. While this justification is interesting, it obscures the fact that judge kick, in the sense of allowing the judge to vote for either the status quo or a counterplan, actually predates conditionality.
The History of Judge Kick
When plan-based debate was first emerging, the emphasis was on affirmative teams presenting a policy and meeting a series of burdens, like harms, solvency, inherency, etc. The negative would typically attack one or more of these areas and attempt to prove the affirmative had not met its burden, rather than always reading a disadvantage like modern day policy debate. Anyone familiar with the stock issues style of policy will find this familiar.
Negative plans or counterplans were an exciting new frontier, and there was substantial debate over the implications they had on the burden of proof for each side. Did the negative concede the “harms” stock issue when they presented a counterplan (because introducing a counterplan implicitly agrees there is a problem)? Which way would the judge vote if both plan and counterplan were equally solvent? Does the negative counterplan also have burdens to meet, like the affirmative plan? And, most importantly for our discussion, which way does the judge vote if neither team sufficiently meets their burdens?
Roger Nebergall, former Director of Forensics at the University of Oklahoma, argued in 1957 that the affirmative had both the burden of proving the plan superior to the counterplan and superior to the status quo.
It would seem, then, that a judge listening to a debate in which the negative introduces a counterplan has two decisions to make. First, [they] ought to weigh the merits of the two proposals. If [they] decide[] that the greater merit rests with the proposal of the negative, [they] will vote for the negative, since the affirmative has not offered the best proposal. If, on the other hand, the judge concludes that the affirmative proposal is a sounder one than that of the negative, [they] will vote for the affirmative, if [they are] also convinced that the affirmative has adequately demonstrated a need for a change from the status quo. If the affirmative has failed to do so, a negative ballot is in order: the kind of negative ballot that is really a vote against the affirmative, rather than a vote for the negative.
Nebergall, Roger E. “The negative counterplan.” Communication Education 6.3 (1957): 217-220. https://doi.org/10.1080/03634525709376882.
While framed slightly differently, this is an explanation of judge kick. The judge is evaluating the plan against the counterplan, and if they determine the counterplan is lacking, evaluate the plan against the status quo. Nebergall is not the only prominent debate mind who comes to this conclusion, Wayne Thompson, former Professor of Speech at Northwestern University, looks to both congressional and legal proceedings to determine a presumption for counterplans. He nevertheless comes to the same conclusion, writing in 1962:
This principle of courtroom practice is one with which the general concept for academic debate which this article has developed is in accord. In both the court- room and the college classroom the tests are the same: 1. Did the affirmative sustain the initial burden of proving that its proposal was superior to continuing the status quo? If not, the negative (or the defendant) wins, and whether the negation proves or disproves its counterplan is irrelevant. 2. Assuming that the affirmative meets this initial test, the question becomes “Did the negative sustain the burden of proving that its counterplan is superior to the affirmative proposal?” If it fails to do this or if the two teams argue with equal skill, the decision goes to the affirmative. The negative (the defendant) has the burden of supporting the counterplan and loses if it does not do so.
Thompson, Wayne N. “The effect of a counterplan upon the burden of proof.” Communication Studies 13.5 (1962): 247-252. https://doi.org/10.1080/10510976209362660.
It’s important to remember that both of these articles were written before the notion of conditional counterplans or even multiple counterplans were even being considered. And yet the burdens they propose for the affirmative are essentially the same modern opponents of judge kick complain about. Since these articles were written, the way judges evaluate the desirability of plans and counterplans has shifted, but not greatly. Most modern policy debates are decided based on “comparative advantages” between the plan and counterplans or the status quo; each team presents offense and attempts to mitigate the other team’s offense, and the judge vote for whichever “world” is best. Despite this, the logic of the affirmative accepting the burden of both disproving the status quo and counterplan remains the same.
A Defense of Judge Kick
Judge kick should not be thought of as a judge intervening for debaters after the debate, or a way to absolve the 2NR of poor choices they make. It should be thought of as an argument that the affirmative has the burden of both proving the plan is better than the counterplan and better than the status quo. Even the phrase “judge kick” implies a level of intervention where the judge makes a choice whether or not they kick a counterplan, but this doesn’t have to be the case. When a judge concludes that a plan is more desirable than the counterplan, but less desirable than the status quo, they don’t need to say “I judge kicked the counterplan,” they can say “the plan met its burden of being superior to the counterplan, but did not meet it’s burden of being superior to the status quo.” The affirmative being responsible for multiple burdens is also nothing new and doesn’t produce any less “dearth of depth” than any other multiple arguments the aff might have to answer.
Many opponents of judge kick argue that it forces the 2AR to debate multiple worlds, because they don’t know whether the judge will kick the counterplan or not. But if you think about judge kick in terms discussed above, this justification makes very little sense. The aff has the burden of both proving the plan is better than the status quo and better than the counterplan, so the aff should do both those things in the final rebuttal. It’s also reciprocal because if judge kick becomes an issue, that means the 2NR has advanced reasons why both the counterplan is superior to the plan and reasons why the status quo is superior to the plan, so the aff should have to answer both of them.
Going back to our example up top, in a world of no judge kick where the negative goes for the counterplan, the aff has the options of (1) conceding the court politics disad and beating the case defense and counterplan solely with affirmative advantages (2) conceding negative case defense and going all in on court politics disad or (3) a mixture of both beating case defense and extending the courts disad. In a world of judge kick, (2) would not be a viable strategy for the aff (because kicking the CP would deprive the aff of all offense) and (3) would only result in an affirmative victory if the aff advantage outweighed the negative disadvantage, without considering the counterplan. Obviously, affirmative teams have a strategic incentive to pick option (2) if it is available to them. It makes all of the case defense the 2NR goes for, as well as any arguments they have for why the counterplan might solve the case, totally irrelevant. The 2AR has 6 minutes to win a debate on an issue which the 2NR might have only spent 2-3 minutes.
The notion that judge kick reduces depth also falls apart if both agree that proving the plan superior to both the status quo and the counterplan are burdens of the affirmative. Consider the following example: the negative, in the 2NR, extends a disadvantage and both harms defense (no impact, squo solves) and solvency defense (alt causes) against the affirmative advantage. If the affirmative, in the 2AR, doesn’t convince the judge that there is at least a risk of a harm to the status quo and a risk that the plan resolves that harm, the overall risk of the advantage would be next to zero and the disad would certainly outweigh. However, the fact that the aff has the burden of both proving that their advantage both identifies a problem and solves it does not decrease the depth of the debate. If anything, it’s a reciprocal standard, because the aff is forced to rejoin every argument the 2NR advances, rather than ignore some and spend a disproportionate amount of time on others.
If a 2AR argued that the judge should ignore solvency and only evaluate the harm to the status quo when considering the risk of an advantage because that would increase the depth of discussion in the 2AR, that speaker would be laughed out of the room. Even if they’re right in the abstract that the 2AR can go further in depth on that issue, the basic fact that an advantage must both identify a problem and prove that the plan can solve it means it would be illogical for a judge to ignore one of those burdens. Just like it would be illogical for a judge to vote for a plan when the plan has not met the burden of being superior to the status quo.
This article is not comprehensive and ignores a lot of the nuances of the judge kick debate, but hopefully it informs some readers of different ways to think about the argument.