Kill the Ump!-ire Analogy
Apologies for bumping the thread below, but a thought I had in my law school days is relevant again with Sotomayor’s confirmation hearings. As I'm sure we all remember, Chief Justice Roberts compared the role of a judge to that of an umpire, saying that “judges are like umpires. Umpires don’t make the rules; they apply them.” In the past two years this analogy has become dogma and been repeated ad nauseam. At today’s hearing no less than five senators (Feinstein, Feingold, Durbin, Coburn, and Schumer) invoked the analogy, with Democrats accusing Roberts and Alito of not acting like umpires.
Roberts was correct that judges are like umpires, but he meant this comparison only in the narrowest possible sense. What he failed to understand (and the senators and media also fail to understand) is that calling balls and strikes, and fulfilling the other duties of an umpire, is not a simple matter. Much like a good judge, a good umpire must apply sometimes vague rules to disparate situations and individuals, exercise discretion, and use his or her reasonable judgment to reach fair results.
Rule 2.00 of the MLB rule book states the following:
“The Strike Zone is defined as that area over homeplate the upper limit of which is a horizontal line at the midpoint between the top of the shoulders and the top of the uniform pants, and the lower level is a line at the hollow beneath the kneecap. The Strike Zone shall be determined from the batter's stance as the batter is prepared to swing at a pitched ball.”
This rule is inexact at best, and indecipherable at worst. Simply mapping out the contours of the strike zone would be a challenge, but to apply this squishy definition to actual game play proves far more difficult. The strike zone is constantly changing, adapting to players’ different sizes, shapes and stances. And, as any fan and player can tell you, every umpire has a different strike zone—one might call high pitches a strike, another may call inside pitches a strike, while another may give veteran hitters a bit of slack. Interestingly for purposes of this analogy, the strike zone has also evolved over time. The rule has been changed no less than a dozen times, and a full six times just since 1950, with the most recent change coming in 1996.
A quick browse of the rule book beyond balls and strikes reveals several situations in which, instead of a clear rule, an umpire is commanded to use his reasonable judgment. For example, in Rule 8.02, an umpire must use his judgment as to whether a pitcher intentionally threw at a batter—if the umpire feels that the pitcher did so, he has a choice of remedies. Rule 9.02, in fact, specifically states that umpire decisions such as fair or foul, ball or strike, safe or out, “involve judgment.”
Perhaps Chief Justice Roberts would be some type of super-umpire who would know exactly what was a ball or strike (and who would never deviate from that oh so perfect strike zone), and perhaps he is omniscient and so would not need to use his personal judgment to determine whether a pitcher was intentionally throwing at a batter.
I doubt that is the case. The reality is that, much like a judge, umpires are given difficult to interpret rules that must be applied to constantly changing and challenging situations. Implying that doing these jobs well requires nothing more than a mechanical interpretation of clear rules is a bush league argument, belying the difficult decisions each faces and belittling the qualities necessary to succeed at either profession. "Judges are like umpires" is the Juan Pierre of legal analogies—celebrated by the media and old folks despite its clear shortcomings when subjected to the slightest of scrutiny. Here’s hoping Judge Sotomayor sends the analogy to the bench once and for all.
*A quick search after writing shows my thoughts here aren't totally original. No doubt this is the Double A version of the good stuff others have previously written.
Roberts was correct that judges are like umpires, but he meant this comparison only in the narrowest possible sense. What he failed to understand (and the senators and media also fail to understand) is that calling balls and strikes, and fulfilling the other duties of an umpire, is not a simple matter. Much like a good judge, a good umpire must apply sometimes vague rules to disparate situations and individuals, exercise discretion, and use his or her reasonable judgment to reach fair results.
Rule 2.00 of the MLB rule book states the following:
“The Strike Zone is defined as that area over homeplate the upper limit of which is a horizontal line at the midpoint between the top of the shoulders and the top of the uniform pants, and the lower level is a line at the hollow beneath the kneecap. The Strike Zone shall be determined from the batter's stance as the batter is prepared to swing at a pitched ball.”
This rule is inexact at best, and indecipherable at worst. Simply mapping out the contours of the strike zone would be a challenge, but to apply this squishy definition to actual game play proves far more difficult. The strike zone is constantly changing, adapting to players’ different sizes, shapes and stances. And, as any fan and player can tell you, every umpire has a different strike zone—one might call high pitches a strike, another may call inside pitches a strike, while another may give veteran hitters a bit of slack. Interestingly for purposes of this analogy, the strike zone has also evolved over time. The rule has been changed no less than a dozen times, and a full six times just since 1950, with the most recent change coming in 1996.
A quick browse of the rule book beyond balls and strikes reveals several situations in which, instead of a clear rule, an umpire is commanded to use his reasonable judgment. For example, in Rule 8.02, an umpire must use his judgment as to whether a pitcher intentionally threw at a batter—if the umpire feels that the pitcher did so, he has a choice of remedies. Rule 9.02, in fact, specifically states that umpire decisions such as fair or foul, ball or strike, safe or out, “involve judgment.”
Perhaps Chief Justice Roberts would be some type of super-umpire who would know exactly what was a ball or strike (and who would never deviate from that oh so perfect strike zone), and perhaps he is omniscient and so would not need to use his personal judgment to determine whether a pitcher was intentionally throwing at a batter.
I doubt that is the case. The reality is that, much like a judge, umpires are given difficult to interpret rules that must be applied to constantly changing and challenging situations. Implying that doing these jobs well requires nothing more than a mechanical interpretation of clear rules is a bush league argument, belying the difficult decisions each faces and belittling the qualities necessary to succeed at either profession. "Judges are like umpires" is the Juan Pierre of legal analogies—celebrated by the media and old folks despite its clear shortcomings when subjected to the slightest of scrutiny. Here’s hoping Judge Sotomayor sends the analogy to the bench once and for all.
*A quick search after writing shows my thoughts here aren't totally original. No doubt this is the Double A version of the good stuff others have previously written.
posted by Max Power at 4:31 PM
10 Comments:
I like the analogy. I don't know why it drives some people crazy. It can provoke a near frenzy of heated rhetoric, for some reason.
That's totally fine to like the analogy as an aesthetic matter, but it doesn't make it factually correct. If you think your opinion is a fact, you are probably Joe Morgan.
(Not making fun of you 5:04---I just wanted to work in a dig at Joe Morgan.)
Post of the year, combining my two loves: blistering political rhetoric and the diamond.
my comment wasn't attempting to prove the worth of the analogy. it was pointing out the odd way it drives some people batty.
it's a good analogy for a bunch of reasons. 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. umps and judges are supposed to develop the mental discipline to set aside their personal desires. they're supposed to reach a mental point where some litigant or participant they like is nonetheless going home the loser.
second, judges are like umpires because they have to make a call that leaves someone happy and someone not so happy. academics can spin theories in the air. pundits can praise and ridicule. but umps and judges have to make calls.
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 in cases where the rules fail. even there, there are rules and norms about making up gap-filling rules and norms.
it's on this point where opponents of the analogy fail to grasp being an ump and being a judge. umps and judges -- and at least some people who invoke the analogy -- know full well that the rules on occasion can be vague, that gaps are there, and that some things are entrusted to the umps or judge's sound discretion. but they also know that the successful exercise of that discretion requires a discipline and a humility.
in short, it's a great analogy.
as for joe morgan, what can i say? as far as i know, he's never been a judge or ump. he was one hell of a second baseman. as an announcer, he's not my favorite. but i'd listen to a booth of 5 joe morgans if it meant that i didn't have to listen to tim mccarver.
I agree with most of what you said, 5:04. But I'm not so sure too many other people are giving it such nuanced thought. Maybe Roberts meant to be this thoughtful when he first said it, but it has since been bastardized and simplified to the point of having little basis in reality.
Your third point is probably the closest to how it is being used. The problem, I think, is that many folks seem to think that rules and norms are always clear, both on the field and in the court.
Also, I think I'm the inverse on Morgan/McCarver. I can make it through a game with McCarver, but dear God I go insane listening to Morgan. Talk about needing discipline and humility.
i've found that umps and refs know all too well the ambiguities. let me give an example.
some umps and refs say that their calls change when the game is on the line. "you don't call that a foul at the buzzer," is one example. other umps and refs are vehement that they make calls one way all the time from the first second to the last. but what you won't find is too many seasoned refs and umps who say "i decide how i'm feeling before i decide how to call fouls at the buzzer," or "i calls fouls at the buzzer depending on which team annoys me more" or "it depends on what i ate for breakfast."
so even if you concede that rules contain ambiguities and that personal philosophies matter in some situations, you still tend to hear an expression of a philosophy that pays fealty to the role.
judges should be like umps.
Toney will actually make love to you if you wrote this while drinking a beer.
um, i'll pass on that kind offer, but as a matter of fact i'm having a fat tire right now.
For the record, a much more apt umpire analogy has been around for decades:
"[F]rom its earliest days our law has looked upon the judge as, in many aspects... a neutral like an umpire in a cricket match who asks only ‘How's that?’." United States v. Worcester, 190 F. Supp. 548, 560 (D.C. Mass. 1960).
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