More on Roberts and Umpires

I am afraid I have to disagree slightly with Mike's assessment of Judge Roberts' umpire analogy (9/14). As a youth baseball umpire for nearly eight years, and also a follower of the judiciary, I believe that Roberts' simile is an apt comparison, perhaps not of what judges always are, but of what they should be. As this hearing is largely about what Roberts will do on the Court, and what the proper role of a Supreme Court Justice is, the analogy takes on a new significance.

"Judges are like umpires. Umpires don't make the rules; they apply them." I concede the point on accountability, but that does not make the analogy unsound. Just as every judiciary has its corresponding legislature, baseball has its governing body that sets forth the rules of the game. As neutral arbitrators, both umpires and judges should apply the rules set forth by these bodies, regardless of personal beliefs, biases or preconceived notions. An umpire should not change the rules for his favorite team; a judge should not adjust the law to benefit a favored litigant. This does not mean that judges and umpires are unthinking robots -- indeed, far from it.

The mark of both a good umpire and a good judge is the ability to apply established rules to new, unexpected situations. It is here that the analogy is stretched the furthest -- it is rare that umpires encounter situations unimagined in the rules. But it does occur. In 1984, Dave Kingman hit a towering flyball in the Metrodome in Minnesota. After several seconds, the players and umpires realized that the ball was not coming back down -- it had gotten stuck in the roof. Faced with a situation not covered in the ground rules, the umpires made a sound decision, awarding Kingman a ground-rule double. After the incident, the rules of the stadium were changed to formally adopt the umpires' judgment. An umpire, like a judge, must be able to do more than blindly apply established rules. But also like a judge, an umpire should not change the rules on a whim. The Angel Hernandez strike zone example given by Mike is an example of "umpire activism."

"The role of an umpire and a judge is critical. They make sure everybody plays by the rules." Much of what I said above applies here. A good judge, like a good umpire, should have the same rules regardless of the player and team involved. But, as an umpire is apt to give more leeway to an established player, so too is a judge more likely to be convinced by a seasoned attorney. Barry Bonds gets the benefit of the doubt on balls and strikes because he has an excellent reputation as knowing the strike zone. The Court might be more receptive to arguments made by Laurence Tribe because they know his reputation as a brilliant legal mind. Bonds can still strike out; Tribe can still lose. But you cannot fault the neutral arbitrators from viewing them in a slightly different light -- as I said above, umpires and judges are humans, not robotic applicators of rules. In the end, it is their good judgment that keeps them anchored to the laws, and not to personal feelings.

"The role of an umpire and a judge is critical . . . But it is a limited role. Nobody ever went to a ball game to see the umpire." The first part of this statement is undoubtedly true. Judges and umpires both play critical roles, but neither should be the focal point. At the end of the game, if no one has noticed the umpire, he has done his job perfectly. And people do line up to see Supreme Court cases, but are they lining up to see the Justices, or to see the Court? I submit that those waiting outside are not clamoring for a view of Justice Scalia or hoping to get the autograph of Justice Souter. Regardless of who sits in those nine chairs, people come to see The Court -- the institution that occupies such a hallowed, and important, place in the American legal system. In this way, "fans" are coming to see "the game" and "the stadium," not the individual "umpires." Justices should not attempt to be stars and should not try to be bigger than the Court as an institution.

Because long after we are all gone, my hope is that both baseball and the Supreme Court still exist, and people are still lining up to see both, confident in the neutrality of the arbitrators and the fairness of the outcome.

Posted in: