How Judges are Like Umpires
Justice Roberts metaphor comparing judges to baseball umpires has taken a lot of criticism, but might be more accurate than his critics will concede.
If you haven't been following the Elena Kagan confirmation hearings, you haven't been missing a heck of a lot. We've learned that Elena Kagan is smart, pretty qualified, pretty liberal....in other words....we've learned basically nothing we didn't already know. One of the few things that we have learned is that liberals really, really don't like Chief Justice John Roberts. No joke....they really hate him.
From the minute that Senator Patrick Leahy began talking, Democrats have been raging against the so called “conservative activism” of the Roberts Court. Their favorite case is almost certainly Citizens United, which they point to as proof that the Roberts Court loves big corporations. I've written about why the critique of Citizens United represents a pretty obvious straw man, but another thing that has been brought up more than a few times were Robert's 2005 comments in which he compared being a Supreme Court Justice to being a baseball umpire. Specifically, Roberts said “I will remember that it's my job to call balls and strikes and not to pitch or bat.”
Senator Amy Klobuchar of Minnesota got Kagan to take a small shot at Roberts use of the “umpire” metaphor. Kagan responded: “The metaphor might suggest to some people that law is a kind of robotic enterprise, that there's a kind of automatic quality to it, that it's easy, that we just sort of stand there and, you know, we go ball and strike, and everything is clear-cut, and that there is no judgment in the process. And I do think that that's not right....“It's especially not right at the Supreme Court level where the hardest cases go and the cases that have been the subject of most dispute go.”
Kagan continued: “Judges do, in many of these cases, have to exercise judgment. They're not easy calls. That doesn't mean that they're doing anything other than applying law. But we do know that not every case is decided 9-0, and that's not because antibody's acting in bad faith. It's because those legal judgments are ones in which reasonable people can reasonably disagree sometimes. And so in that sense, law — law does require a kind of judgment, a kind of wisdom....To the extent that what an umpire suggests, that there's got to be neutrality, that there's got to be fairness to both parties, of course that's right.”
For all of the mocking that the comment has inspired, and it has gotten considerable criticism from both sides, including conservative icon Richard Posner, Roberts' comment might not be as absurd as critics might have you believe. Like Supreme Court Justices, the way that Major League Baseball umpires call strikes vary according to their interpretation of baseball's rules.
Officially, the top of the strike zone in baseball is the horizontal line at the midpoint between the top of a hitters shoulders and the top of the unifrom pants, while the bottom edge of the strike zone is theoretically represented by the line at the hollow beneath the batter's kneecap. And of course, the horizontal boundaries are each side of home plate.
If enforcing that sounds easy, it isn't. The de facto strike zone varies considerably depending on what umpire is behind the plate, who the pitcher is, who the batter is, how well the umpire is seeing the ball… You name it. The crankiest of umpires require the entire diameter of the ball to cross the plate inside the official strike zone area outlined above. But of course, it isn't always called this way. Some umpires will call pitches in which any portion of the ball touches the edge of the official strike zone strikes. Umpires also tend to situationally change the way they call the games. With two strikes, hitters know that a good pitch on the outer half of the plate might get them called out on strikes if they don't take the bat off of their shoulders.
One of the easiest ways to get yourself thrown out of the game as a player or coach? That would be arguing balls and strikes. That's why rule 0.02 (A) exists. It reads “Any umpire's decision which involves judgment, such as, but not limited to, whether a batted ball is fair or foul, whether a pitch is a strike or a ball, or whether a runner is safe or out, is final. No player, manager, coach or substitute shall object to any such judgment decisions.”
Yet there inevitably are disagreements between players/managers and umpires. Just the other night, Dodgers First Baseman James Loney got run for arguing a called third strike.
The point of all of this is that whether Roberts thought he was making a sophisticated analogy or not -- and I can't be sure -- the umpire analogy may be more accurate than it may appear. Major League Baseball umpires all have the same rules, but they interpret them differently and they apply them differently in real life situations. No two umpires call the game the exact same way... kind of like the Supreme Court. Calling balls and strikes requires sophisticated interpretation based on basic guidelines. Umpires call the games like they see them. And so do judges. Sometimes, both see the pitches differently.