Ethics

?Judges are like umpires.?  John Roberts made that claim, but the analogy isn?t universally popular.  I?ve always liked it myself.

For several seasons I referred basketball at a high level and I?ve sat as the arbitrator in a few dozen cases.  (For that matter, I?ve held jobs where I ?made the call? on whether something was a conflict of interest or wasn?t.)  When acting as judge, or as the ethics rules would say, as a ?neutral,? I constantly drew on the skills and attitudes I learned from refereeing.   (I realize that umps and refs aren?t 100% identical but I don?t think Roberts was granting baseball umps any special priority; he was invoking our national pastime?s version of the sports ref.)

First, neither the ump nor the judge is supposed to want one side or the other to win. Fans and partisans can do that. Legislators too. But not umps and judges.  I refereed plenty of games where I found the players on one team or the other offensive.  But umps and judges are supposed to develop the mental discipline to set aside those kinds of sympathies.  They're supposed to reach a mental point where they?re perfectly prepared to watch some litigant or participant they like end up with a disappointing loss.

Second, judges are like umpires because they have to make a call that immediately hurts one side or the other.  Academics and policy types can write position papers or spin out theories.  That?s useful for its purposes, but it?s not judging or reffing.  Sitting as judge or wearing the ref?s jersey means that you dish out disappointment directly to people in your presence.  Sometimes you dish out massive disappointment.  That process can quickly spiral out of control, so you end up developing a deep respect for the integrity of the process.

Third, judges and umps are supposed to follow the rules or norms when the rules and norms are clear. They're not supposed to make up new rules except when rules and norms fail.  And even when they do, there are rules and norms about making up gap-filling rules and norms.

It's on this point where, imho, opponents of the analogy fail to grasp what it?s like to be a judge and an ump.  In my experience, umps and judges?and at least some people who invoke the analogy?know full well that on occasion the rules can be vague, the rules may have gaps, and that some decisions are inescapably entrusted to the ump?s or judge's sound discretion. But they also know that the successful exercise of that discretion requires discipline, humility, and a commitment to the practice.  So they're not necessarily being naive or disingenuous when they say that their job is to apply the rules, not make the rules.  That attitude is part of the craft.

Let me give an example.  In my experience, some refs say that they make calls differently at the end of the game.   For example, you may hear a ref say "you don't call that a foul at the buzzer." Other umps and refs are vehement that they make calls consistently from the first second to the last.  But what I?ve never heard is a seasoned ref or ump say ?How I call fouls at the buzzer depends on what kind of mood I?m in,? or ?I calls fouls at the buzzer depending on which team annoys me more" or "It depends on what I ate for breakfast." 

So being a judge or ump requires some mental discipline, some attention to role, and some humility. 

Notice, finally, how the Democrat senators framed their criticism today.  They accused Roberts of not living up to the umpire ideal.  They accused him of picking favorites and having a shifting strike zone.  In doing so, they didn?t applaud Roberts for abandoning the ump?s role.  They criticized him for abandoning it.