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.