- Published on Saturday, 11 July 2009
- Written by Bruce Weber, NY Times
"Have you read Roe v. Wade?" Tim Tschida was saying to me. "It's very clear."
This was three years ago. It was an unexpected moment to bring up the 1973 Supreme Court decision that established a right to abortion. Mr. Tschida is a major-league umpire and we were on our way to the ballpark. I had just asked him why the strike zone, an entity seemingly well defined by the baseball rulebook, was such a bone of contention in the game. And in a flash Mr. Tschida made the instinctive comparison between an umpire's conundrum and a high court justice's.
"What it says is very clear. And we've still been fighting for 25 or 30 years over what it means."
An argument for judicial activism? Well, no.
But as President Obama's nominee for the Supreme Court, Judge Sonia Sotomayor, heads to the Senate this week for confirmation hearings, Mr. Tschida's assertion that umpires are like judges is especially pertinent because the analogy most famously goes the other way around.
It was in September 2005, just as I was starting research for a book about umpires, that the man who would become chief justice, John G. Roberts, Jr., elevated my subjects to the central metaphorical role in American jurisprudence.
"Judges are like umpires," Judge Roberts declared in the opening remarks to his own confirmation hearings. "Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role."
Judge Roberts was far from the first to make the comparison, which dots the literature of the 20th century, legal and otherwise. He wasn't even the first to make it in the Senate that day. Addressing him in his own introductory remarks, Senator Jeff Sessions, Republican of Alabama, asserted: "What we must have -- what our legal system demands -- is a fair and unbiased umpire, one who calls the game according to the existing rules and does so competently and honestly every day."
But since the Roberts hearings, the umpire metaphor has become synonymous, at least in public debate, with judicial restraint, the idea that judges are merely arbiters, that their job is not to set aside precedent and create law but to decide cases on the basis of established law. To do this, the argument goes, judges must check their personal beliefs and biases (not the same thing) at the door of the courtroom, just as an umpire should bring no opinion about how baseball ought to be played or rooting interest to the diamond.
"Activism is when a judge allows his personal views on a policy issue to infect his judgment," Mr. Sessions warned Judge Roberts during the hearing.
Thus does the umpire metaphor misleadingly jumble together the ideas of belief, bias and activism, as though all personal viewpoints are somehow tainted for being personal. Judges with personal beliefs make objective decisions all the time, after all. (That the senator used the word "infect" rather than "affect" might be construed as indicating his own bias.)
Then, too, it is possible for a judge to perceive the discarding of precedent as a matter of judicial restraint rather than judicial activism. Judge Roberts acknowledged this as his view of Brown v. Board of Education, the 1954 decision that made school segregation illegal, setting aside an 1896 case, Plessy v. Ferguson, that had established the doctrine of "separate but equal." Judge Roberts acknowledged that Brown was a groundbreaking case but said it did not amount to "changing the strike zone" because the court had relied on a later precedent, a 1950 case involving the University of Texas Law School establishing that separate-but-equal was an unattainable standard in state-supported higher education. The Brown ruling, Judge Roberts explained, was not a departure from established law so much as a return to it. Might one assume as well that the justices were not "infected" by a belief that segregation was ugly and wrong?
It is likely that in invoking the umpire metaphor, Chief Justice Roberts was consciously oversimplifying his judicial philosophy. He also said that "we all bring our life experiences to the bench." The black robes represent the fact that justices are not supposed to act as individuals, he said. They are "supposed to be doing their best" to interpret the Constitution not according to their own preferences but by the rule of law, he said, leaving the question open as to whether that is possible. "That is the ideal," he said.
In any case, the overlapping issues of a justice's personal beliefs and judicial activism are almost certain to be raised this week, quite possibly by Senator Sessions, who now represents the minority party on the Judiciary Committee. Judge Sotomayor's public statements about the kind of empathy she brings to the bench as a Latina have already elicited objections to what some view as an admitted bias. And that position was fanned by the Supreme Court's recent reversal of the appellate court decision she joined that nullified the results of a firefighters' exam in New Haven because a disproportionate number of minority candidates failed it.
"She certainly has a distinguished career," Senator John Cornyn, a Texas Republican on the committee, said last month about Judge Sotomayor. "The real question is how she views her role as a judge: whether it is to advance causes or groups or whether it is to call balls and strikes."
For their part, umpires recognize the similarities between themselves and judges. But they make distinctions readily, the most prominent being that unlike judges, umpires don't deliberate.
"Umpires are eyewitnesses," said Jim Evans, a major league umpire from 1972 to 1999 who now runs a school for umpires in Florida. "As the umpire you are the eyewitness and the judge. You make your decision based on your own reportage."
Sure, umpires call 'em as they see 'em, and judges learn about everything from interested parties; they call 'em as they hear 'em. In a 2007 case, however, Scott v. Harris, the justices played umpire and ruled on the basis of what they saw. The case involved a motorist, Victor Harris, who was fleeing the police and was rendered quadriplegic after a police car rammed him to put an end to a high-speed chase. After viewing a videotape of the chase, the court ruled 8-1 that Harris was not entitled to sue on the basis of his Fourth Amendment protection against unreasonable search and seizure. "No reasonable juror," Justice Antonin Scalia wrote for the majority, could fail to see the deadly risk to the public posed by Mr. Harris's flight. And rather than publish a rebuttal of the minority opinion of Justice John Paul Stevens, the Court chose instead a unique response -- it posted the videotape on its Web site.
"We are happy to allow the videotape to speak for itself," Justice Scalia wrote.
A subsequent study by Dan M. Kahan, David A. Hoffman and Donald Braman of what 1,350 people saw in the video yielded startling results. "Whites and African- Americans, high-wage earners and low-wage earners, Northeasterners and Southerners and Westerners, liberals and conservatives, Republicans and Democrats -- varied significantly in their perceptions of the risk that Harris posed," they wrote in the Harvard Law Review in January.
So what is the umpire's objective judgment here? Where is the foul line?
Another difference between umpires and Supreme Court justices is that umpires can be reversed. Perhaps the most famous example of this is the pine tar incident of 1983. George Brett of the Kansas City Royals hit an apparently decisive ninth-inning home run against the Yankees but was declared out by the umpires for having too much pine tar on his bat. The umpires were in strict constructionist mode; the rulebook said that the use of an illegal bat would cause the batter to be declared out and Mr. Brett had pine tar on his bat well beyond the limit of 18 inches above the handle. But the Royals protested, and the American League president upheld the protest -- citing the spirit rather than the letter of the law -- and the game resumed. The rule, which had been implemented in the first place to discourage a different illegality -- bat corking -- was rewritten to say that a bat with too much pine tar would result not in an out but in the bat's being removed from play.
Umpires tend to be politically conservative -- "Maybe we should have Latina umpires because they have more empathy, right?" Mr. Evans suggested -- but the pine tar example notwithstanding, they often view their role on the field more progressively. Of course, it might just be they like exercising their authority, but in many matters -- calling balls and strikes, for instance -- umpires are loath to yield their personal discretion.
"It's like the Constitution," the umpire Gary Cederstrom said to me. "The strike zone is a living, breathing document."
Last week, the umpire Marty Foster called the Yankees' Derek Jeter out on a steal of third, and though it appeared he was never tagged, Mr. Jeter said Mr. Foster explained that he didn't need to be tagged to be called out because the ball beat him to the bag. Talk about judicial activism! An uproar arose over this, but in fact, if that's what Mr. Foster said, he was simply -- if unwisely -- expressing aloud a generally unspoken umpire tenet that allows for some discretion on close plays to keep managers and fans, who can clearly see throws but not tags from the dugout or the stands, from causing a ruckus.
The judge-umpire analogy, in the end, is unfair to both judges and umpires, and in the current context it's worth remembering the 1933 eulogy that F. Scott Fitzgerald delivered for his friend Ring Lardner, whose focus on baseball -- "a boy's game, with no more possibilities in it than a boy could master," Fitzgerald lamented -- kept him from fulfilling his promise as a writer.
Baseball may be appealingly all-American, but when it comes to matters of life and death, it's only baseball.
Bruce Weber's book "As They See 'Em: A Fan's Travels in the Land of Umpires" was published in March.