As the Sotomayor confirmation hearing gets underway I want to warn you to be ready for all kinds of ridiculous metaphors comparing the role of a justice to that of an umpire in a baseball game. I know this will surprise you, but Republicans will argue that Judge Sotomayor’s public statements are an indication that she is not capable of simply calling balls and strikes. Republicans want us all to believe that Sotomayor is a partial jurist. For their part, Democrats will use Sotomayor’s record to try and reassure us that, if confirmed, Sotomayor will dutifully follow well-established legal principles. In short, Democrats will tell us that Sotomayor’s entire legal career is full of instances where she was simply calling balls and strikes. If you listen to Democrats long enough they will have you believing that Sotomayor never before exercised free thought while she has been in the judicial branch.
All of the efforts to compare judges to umpires fail to recognize one important difference. While umpires are required to apply their judgment to a well-defined set of rules members of the Supreme Court are asked to alter or rewrite the rules of the game they are officiating if they believe the current rules do not adequately address the situation before them. If shadows make it much more difficult for hitters to see the ball as it leaves the pitchers hand umpires do not have the authority to announce that for the next few innings, until the sun dissipates, a pitcher will need to get four strikes to retire a batter. But if a majority of the Supreme Court decides current law would create an unjust result or would give one side an unfair advantage they are free to change the rules in the middle of the game.
Lastly, the conservatives who have created the narrative that judges must simply call balls and strikes within the parameters of the rule book obviously have not watched a baseball game in the last 50 years. Anyone who knows anything about baseball knows that the calling of balls and strikes has become an individual art form. In fact, I do not believe there is any umpire in Major League Baseball who calls strikes as the rule book defines them. If you do not believe me watch a game and let me know how many pitches at or above the letters are called strikes. I’m betting you will be able to do so on one hand. Even baseball umpires, who are supposed to work within a well-established set of rules, apply their personal view of balls and strikes. Just as we know who are the liberal justices and who are the conservative ones baseball fans know which umpires favor pitchers and which ones prefer hitters.
Umpires and Supreme Court justices can not be expected to be robots. Just as baseball fans need to tolerate the reality that umpires are different the American public needs to understand that justices are individuals as well. Given that justices, unlike umpires, are also allowed to alter or modify the rules of the games they officiate the process of confirming them will always be political. So, instead of boring us with baseball analogies that downplay the actual job of being a Supreme Court justice all parties should acknowledge the political nature of the job and hold hearings that answer the questions the public has a right to know. In short, Judge Sotomayor should have to tell us, in general terms, how she feels about abortion, capital punishment, and all of the other hot-button issues of the day. If she is going to have a hand in writing the rule book all of us must live under it is only fair if we have some idea about the kinds of rules she will promote. Since the rule book Sotomayor will help write has such greater meaning than does the strike zone umpires are free to interpret the American public should not have to wait until she is given a lifetime appointment to discover Judge Sotomayor’s views on the important situations her rules will seek to address.
Tags: Congress, Democrats, law, opinion, politics, Republicans, Senate, Sonia Sotomayor, Supreme Court
