Tuesday, October 18, 2005

More on Umpires and Judges

While I was away, Robert Schwartz penned an excellent op-ed for the New York Times in which he evaluated the analogy between judges and umpires. As he correctly notes, the job of both an umpire is never just to blindly apply the rules or the law; there is a great deal of interpretation needed for both. The key, as he says, is the approach taken to interpretation.

    Umpires often have no choice but to use discretion. They cannot invoke the infield fly rule unless an infielder can catch the ball "with ordinary effort." And they must call a balk on a pitcher trying to pick off a runner on first if he does not "step directly" towards the base. Umpires spend years learning how to interpret common legislative terms like "ordinary" and "directly."

    So within a certain range, umpires have leeway. But baseball doesn't tolerate an umpire whose judgment is on the fringe. Indeed, the umpire who is overly technical in calling balks, or who sees balks when none occur, is too far outside the mainstream to last.

    Earlier this year, the Supreme Court had to decide whether the juvenile death penalty was "cruel and unusual punishment." The majority and dissents used different methods to decide what those words mean. Both had to justify their methods of interpretation; neither could rely solely on the text of the Eighth Amendment.

    This nuance, however, seems to be lost on many politicians. "What our legal system demands," said Senator Jeff Sessions of Alabama, "is a fair and unbiased umpire, one who calls the game according to the existing rules." Well, yes, but the best umpires are honest enough to acknowledge that they have an approach to umpiring. The myth of the neutral umpire is no more tenable than that of the neutral justice. When the Senate considers Harriet Miers, the philosophy behind her decision-making is what matters, especially since she doesn't have a minor-league record.
(Schwartz, "Like they see 'em," N.Y. Times, 10/06/05). In the past few weeks, both Miers and umpires have come under fire for sending mixed signals. As Schwartz suggests, the best thing for both to do is to be honest and admit they have an approach to umpiring.

Related Posts:
Evaluating Roberts' Analogy of Judges to Umpires (9/14)
More on Roberts and Umpires (9/16)

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