Judges as Umpires, Redux

On Slate, Walter Dellinger (former Acting Solicitor General, con law professor, and appellate lawyer) offers his "Five-Minute Crash Course in Constitutional Law" for non-lawyers.

He gives the best rebuttal I yet have seen to the "judges should be umpires" tripe:

Senators especially like it when a nominee says a judge's role is just to be an "umpire." But broad constitutional phrases are different from sports rules, so a judge would be like an umpire only if the game—instead of having a strike zone and a set number of balls, strikes, and outs—provided instead that "each batter shall have a fair chance to hit the ball" and "each team shall have a reasonably equal opportunity to score runs." Key language of the Constitution is that broad, meaning that men and women appointed to the bench must necessarily exercise judgment. Which is, of course, why they are called judges, and not umpires.

Wish I had said it exactly that way.

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