The Origin Of The Umpire Analogy

Kagro at daily kos is sick of the umpire talk in the Sotomayor hearings. In fact, it was always a ridiculous argument, first forwarded by the disingenuous now Supreme Court Chief Justice John Roberts. During his 2005 confirmation hearings, I wrote about how disingenuous Roberts was to use the analogy:

It is an interesting analogy Judge Roberts draws. And it seems to me to be an excellent argument for why Judge Roberts must answer the questions put to him by the Senate. As any baseball fan knows, umpires are not uniform in the delineation of the strike zone. Some are "hitters" umpires. Some are "pitchers" umpires. Some call the high strike. Some call the outside pitch.

And when it comes to the Supreme Court of the United States, it is important that we know what Judge Roberts' "strike zone" is. His record, the part that was not concealed by the Bush Administration, gives many of us pause regarding Judge Roberts' "strike zone." His stated antipathy for the right to privacy, for voting rights measures, for discrimination remedies, etc., demands followup. What does your "rulebook" say about these things Judge Roberts?

Senators Feinstein, Whitehouse, Schumer and Durbin all pointed out today that Chief Justice Roberts was less than honest about what his judicial strike zone would be. In that sense, the umpire analogy still has its uses.

Speaking for me only

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    Umpire Analogy Originalism (5.00 / 1) (#5)
    by oculus on Mon Jul 13, 2009 at 09:15:46 PM EST

    sports metaphors and analogies (5.00 / 1) (#9)
    by christinep on Mon Jul 13, 2009 at 10:54:04 PM EST
    It is nice to have a respite from overused and misused sports analysis that pretends to be legal.  (Actually, at the time of then Judge Roberts hearing, I always considered the umpire talk to be oddly predictive of how he might approach certain matters--e.g,, some to-the-manor-born types tend to regard societal and legal conflicts as being played "on a level playing field," with their approach reflecting the rigidity/protection of the status quo.)  In any event, I much prefer the direct and perfectly textured phrase used by Judge Sotomayor today to describe her judicial philosophy: Fidelity to the Law. Imagine the real richness of that philosophical fabric!

    Fidelity to the law... (none / 0) (#13)
    by kdog on Tue Jul 14, 2009 at 08:02:52 AM EST
    Yeah, it is a good catchphrase for a judge...but on this side of the bench, you would need your head examined for being fauthful to such an abusive, controlling spouse...I'm sticking to infidelity:)

    The umpire analogy here (5.00 / 2) (#10)
    by Dr Molly on Tue Jul 14, 2009 at 07:00:55 AM EST
    reminds me a little bit of an age-old argument in science about whether any scientist, or scientific approach to data, can be purely objective and theory-free (most would say no).

    The idea that a justice could be 100% objective about the law, allowing absolutely no experience or background knowledge or opinion to invade their judgment, seems pretty naive.

    Americans have a problem with analogies (5.00 / 1) (#11)
    by BernieO on Tue Jul 14, 2009 at 07:08:24 AM EST
    We seem to expect them to be exact matches - which makes them copies, not analogies. It should lead to a discussion of the ways in which the analogy works, where it doesn't, what might be a better analogy. That can actually lead to a deeper understanding of the subject.

    For example we were not allowed to even bring up an analogy between what our country was doing after 9/11 to the early years of Nazi Germany without being treated like fear mongers. Yet there were parallels - people giving up freedoms in fear, media complicity with government deceit. Right wingers responded as if people were comparing us to the Nazi's at their worst, not with the initial stages. It is not like Germany changed overnight from a democracy to a viscious totalitarian state. Without being able to discuss this how are we to avoid going down that same path? (I forgot, we Americans would never do such a thing.)

    I think the use of the umpire/justice analogy is apt. A lot of the rules in baseball are clear, but the strike zone is not and obviously invites bias and personal interpretation. Umps must have all kinds of personal biases that determine where they draw the lines - favoring certain teams, trying to keep the game exciting by favoring batters, etc. These biases are based in their personal experiences.

    To pretend that judges do not bring these kinds of biases to the bench is to imply they are not human. The best we can ask for is that judges make the best effort to be aware of their biases and attempt to be as impartial as is humanly possible. That means sometimes ruling against groups with whom the judge strongly sympathizes.

    Did Judge Roberts purport to be a (none / 0) (#3)
    by oculus on Mon Jul 13, 2009 at 08:57:09 PM EST
    baseball fan?  Didn't he know the propensity of umpires to favor some players and pitchers in determining the strike zone?

    I guess if you're a veteran lawyer... (5.00 / 1) (#4)
    by Dadler on Mon Jul 13, 2009 at 09:04:26 PM EST
    ...arguing before him, like most umps, he'll give you an expanded zone.  rookies, forget about it, you'll get squeezed.

    seriously, i doubt he knew what he was talking about at all.  i have a feeling that was an invented talking point given to him.


    Good point... (none / 0) (#14)
    by kdog on Tue Jul 14, 2009 at 08:08:02 AM EST
    the strike zone became so subjective the game had to go messin' with Questec..probably cost Tom Glavine a dozen wins when his 2 inches off the outside corner change-up became a ball after years of being a strike.

    his record was concealed by the (none / 0) (#6)
    by coigue on Mon Jul 13, 2009 at 10:16:26 PM EST
    Bush WH?

    Documents Roberts created while (none / 0) (#8)
    by oculus on Mon Jul 13, 2009 at 10:50:48 PM EST
    working at DOJ and for Bush White House.

    thx (none / 0) (#16)
    by coigue on Tue Jul 14, 2009 at 03:27:35 PM EST
    Yes, but how far can Dem senators go? (none / 0) (#12)
    by vicndabx on Tue Jul 14, 2009 at 07:46:34 AM EST
    In that sense, the umpire analogy still has its uses.

    They can only piss off the republicans but so much by pointing out the current court's flaws.....

    How did we miss this? Bruce Weber, (none / 0) (#15)
    by oculus on Tue Jul 14, 2009 at 10:23:06 AM EST
    author of As They See 'Em:  A Fan's Travels in the Land of Umpires wrote an article in Sunday's NYT:  Umpires v. Judges