Legal News

If Judges Aren?t Umpires, What Are They? A Yale 3L Answers

By Ashby Jones

Yeah, well, we’re one of those guys who watches spring training baseball games on the Web, who reads reports of February college games on Baseball America, who every year thinks about calling in sick on Opening Day (but never does).

Anyway, our thoughts of the diamond recently brought us back, once again, to that famous saw about judges and umpires. You know the one: articulated by Chief Justice John Roberts during his confirmation hearings. The chief said:

Judges are like umpires. 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.

It sort of sounds nice, doesn’t it? Thing is, folks from all over the political spectrum don’t necessarily agree. Take, for instance, Seventh Circuit judge Richard Posner, who wrote in 2006:

The formalist conception of judging crudely depicted by Roberts is fancied up in versions intended for academic audiences. No serious person thinks that the rules that judges in our system apply, particularly appellate judges and most particularly the Justices of the U.S. Supreme Court, are given to them the way the rules of baseball are given to umpires.

Fair enough. So is there a baseball-related analogy that would more accurately apply to the act of judging? A fellow named Aaron S.J. Zolinski thinks so. Zolinski, a 3L at Yale, recently wrote a piece in the Yale Law Journal Online in which he likened judges, and specifically Supreme Court justices, not to umpires, but to the baseball commissioner.

We don’t think the commissioner analogy is a perfect one — appeals of umpiring decisions, of course, don’t typically land on the commissioner’s desk. But we do think it’s a better comparison than to umpires.

Posner, in the above-cited article writes that “the rules are created by the judges themselves.” Zolinski agrees, writing:

Both Supreme Court Justices and Baseball Commissioners exercise rulemaking authority that trial judges and umpires lack. . . . For Supreme Court Justices, this power is evident in their interpretations of the Due Process and Equal Protection Clauses. The Commissioner of Baseball's analogous power flows from Article II, Section 3 of the Major League Constitution, which allows the Commissioner to take action to protect "the best interests of Baseball." . . . For both Justices and Commissioners, this power to "chang[e] the rules" sets them apart from umpires and trial court judges.

Work for you, LBers? Works pretty well for us. But will it work well enough for the next Supreme Court nominee to mention it during her or his confirmation hearing? We’d guess not — we imagine a “we make the rules” statement would not be taken kindly by any U.S. Senator.

Full post as published by Law Blog - WSJ.com on March 10, 2010 (boomark / email).