Federal Judiciary

Concering Umpires and Objectivity

Senate Republicans believe a good Supreme Court justice should behave as if he were a baseball umpire, an analogy first employed by Chief Justice Roberts during his 2005 confirmation hearings. Judge Sotomayor, in the opinion of some Republicans, runs afoul of this principle in her comments that her ethnicity and gender, in some instances, shape her view of the law. Thus, somehow Sotomayor morphs from an umpire into a player in the game.

Sen. John Cornyn criticized Judge Sotomayor on these grounds: "The focus shouldn't be on the umpire and what their sex or gender is, or ethnicity. It ought to be on the game."

This is a flawed analogy for a number of reasons, most importantly because it is a faulty representation of baseball. The New York Times recently ran a great story about Little League umpires, such as Seth Lofton:

One of the biggest challenges for Mr. Lofton, and for any umpire, is navigating the enigma of the strike zone. Although there are specific guidelines, the zone is notoriously elastic and every umpire seems to have a slightly idiosyncratic version.

Mr. Lofton admits to employing a different strike zone for younger players. ?If the score is 15-0 in the second inning, you widen the strike zone for one team and narrow it for the other,? said Mr. Lofton, who has a 19-year-old daughter and a 15-year-old son, who plays football, not baseball. ?You don?t want them to go home crying.?

Umpires also tend to adapt their role for younger players. They become an instructor as much as a neutral arbiter, telling batters where to stand and pitchers how not to balk. If he called every balk, Mr. Lofton said, ?You?d be there all day.?

As you can see, baseball is not always black and white. I can attest to this from personal experience. When I came to the painful realization that I had no talent as a baseball player, I became a Little League umpire. Your inference about interpretation in baseball umpiring is absolutely correct. Every umpire's strike zone varies a little, and the game situation is taken into consideration when calling balls and strikes. I was instructed by my head umpire that my strike zone should be slightly wider when the batter has two strikes against him. He told me this because he thought it was important to teach young kids to be more aggressive when there are two strikes.

In fact, the rules of baseball recognize that umpires often must rely on their own judgment independent of the written text of the rule book.

"Section 9.01 (c) ? Each umpire has the authority to rule on any point not specifically covered in these rules."

This rule is in the rule book for both Little League and the Major Leagues. It is used very rarely - in eight seasons of umpiring I only had to invoke this rule once. But I think it is a recognition that umpiring baseball is not as simple as it appears. You can't just a computer program based on the rules of the game and expect a robot to apply the rules with exact precision. There is a gray area that
requires human judgment based on interpretive philosophies.

Let's take a more realistic view of judges and umpires. Otherwise Oliver Wendell Holmes and Bill McGowan will both rise from the graves to eject Sen. Cornyn from the game.

Full post as published by Supreme Dicta on June 08, 2009 (boomark / email).