* Judges are like umpires, except when they're not

William Fisher takes umbrage with the anaology in his Aug. 10 Huffington Post column:

But Republican Senators, evidently chagrined at being unable to hit a home run based on the nominee’s judicial record, turned to The Nation’s Pastime.

The baseball analogy has become widely used by nominees ever since now-Chief Justice John Roberts famously stated at his own confirmation hearings in 2005: “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules.”

But a number of legal scholars we contacted expressed dismay at the use of a baseball analogy to define a jurist. To many, this represents the ultimate dumbing down of jurisprudential thinking. They ask why, if judging were only about balls and strikes, why would we need nine Justices, why would we so often have cases decided in five to four decisions, and why would so many Supreme Court rulings be reversed by later courts?

Nonetheless, the baseball analogy persisted throughout the hearings and in the vote on the Senate floor. SCOTUS (Supreme Court of the United States) Blog, a widely respected online report about the High Court’s decisions, wrote that the Senators used the phrase “balls and strikes” at least 11 times, and “umpire” or “umpires” 16 times.

For example, Senator Jeff Sessions of Alabama, the highest ranking Republican on the Judiciary Committee, said that if a judge had a personal or political agenda, “Such an approach to judging means that the umpire calling the game is not neutral, but instead feels empowered to favor one team over the other.”

But Senator Sheldon Whitehouse of Rhode Island countered with, “I particularly reject the analogy of a judge to an ‘umpire’ who merely calls ‘balls and strikes’. If judging were that mechanical, we would not need nine Supreme Court Justices.”

His conclusion is borne out by two centuries of Supreme Court rulings reaching different conclusions in the same cases and of majority decisions later being reversed.

* * *

A number of prominent legal experts have weighed in with us on the “balls and strikes” analogy.

Chip Pitts, A Lecturer at Stanford University Law School and president of the Bill of Rights Defense Committee, told us, “Notwithstanding the current public triumph of the ‘umpire’ metaphor, judging usually isn’t a matter of objectively and passively applying a simple rule from a single rulebook to a specific set of facts. Judging real cases at this time of great social and technological change — especially cases of the sort that make it to the U.S. Supreme Court, involving complex disputes over meaning, sources of legal authority, and application to facts — cannot possibly be crammed into such a formalistic box without doing great damage to both truth and justice.” ….

Marjorie Cohn, president of the National Lawyers Guild, told us, “Since he was confirmed to the Court, Roberts has behaved more like a radical right fielder than an umpire. He routinely favors corporations over individuals, and prosecutors over criminal defendants. Roberts is doing his best – quite effectively – to shape the Court into a reliable tool to further the right-wing agenda.”

Prof. Peter M. Shane of the Ohio State University law school told us, “The ideas that Supreme Court Justices are mere umpires, or that constitutional interpretation bears any authentic resemblance to following a baseball rule book, are ludicrous.”….

An arguably even more dire view was expressed to us by Prof. Francis A. Boyle of the University of Illinois law school. Here’s what he said:

“Roberts’ analogy to a baseball umpire was sheer propaganda designed to mask his hard-line movement commitment to accomplishing the agenda of the Federalist Society, of which he was a member despite the misrepresentation he made to the Senate Judiciary Committee to the contrary, which was illegal. The Federalist Society is a gang of lawyers and judges who are right- wing, racist, reactionary, bigoted, sexist, war-mongering, elitist and totalitarian. For example, Feddie lawyers were responsible for the Bush Administration’s torture scandal. Right now, there are four die-hard Feddies on the U.S. Supreme Court: Roberts, Alito, Thomas, and Scalia, the Four Horsemen of the Apocalypse.”….

Boyle sums up: “Supreme Court nominations and confirmation hearings are all about politics and economics, not calling balls and strikes. And Supreme Court Nominees are by nature political animals: Indeed it was 5 Republican Justices who unconstitutionally installed George Bush Jr. as President of the United States in 2000, thus giving America the most disastrous Presidency since the dawn of the nineteenth century.”

I almost think the injustice (pardon the phrase), is done to the umpires. After all, they have to make snap decisions, without the benefit of precedent or research or time. You appreciate this more when you go to a game, as opposed to watching it on TV, where questionable calls are replayed ad nauseum. They have one chance to get it right — increasingly it seems they don’t — whereas the Supreme Court can take its time and deliberate a case…or ignore it altogether.