Opening Day of Major League Baseball and the start of the new season this week provide an ideal opportunity for the Supreme Court to ask what it can learn from the ethical rules that govern umpires in professional athletics.
"Judges are like umpires," Chief Justice John Roberts famously declared at his confirmation hearing, but if several of his colleagues were professional baseball umpires, they would have been fired or disciplined long ago for egregious breaches of professional rules that insist upon scrupulous neutrality and the avoidance of fraternization with players and their club employers.
The Supreme Court, which has not adopted for itself any comprehensive code of ethical conduct like the ones that govern professional athletics (or for that matter lower court judges), is now embroiled in controversy over its lax approach to rules requiring justices to recuse themselves from real and perceived conflicts of interest. Although the judge-as-umpire analogy is flawed in some ways, the Court could certainly benefit from studying and embracing the code of conduct rules that professional umpires and referees follow.
The Major League Baseball Umpire Manual provides that "umpires should avoid excessive casual unnecessary conversation with players, coaches, managers, or spectators" during games and, off the field, may not even "visit club offices unless official business requires otherwise" (emphasis added). All interactions with teams and their players must be on a public and official level.
The Manual also specifies: "To avoid appearances of impropriety, umpires should be cautious regarding any casual fraternization" with team players and club employees (emphasis added). The idea of an umpire headlining a fundraiser or pep rally for a specific team is unthinkable.
Furthermore, the Manual provides that umpires "shall not make public statements that create an appearance of lack of impartiality toward a player or Club . . ." It also bans the receipt of "compensation or anything of value from any Major League Club or any third party." The whole point of the Code is to prevent the reality and appearance of umps showing even the slightest tilt in one direction or another so they can "call them like they see 'em" and not have their vision on the ground colored, or their public credibility undermined, by personal sympathies or political entanglements.
Baseball is not alone. According to the National Association of Sports Officials, which includes referees and umpires in professional and college hockey, basketball, football, as well as baseball, sports officials recognize that anything which "may lead to a conflict of interest, either real or apparent, must be avoided. Gifts, favors, special treatment, privileges, employment or a personal relationship with a school or team which can compromise the perceived impartiality of officiating must be avoided."
The ethical storm clouds floating over the Supreme Court today began to form when several Justices forgot these basic lessons, stepped outside of their proper judicial roles and engaged in professional, social, political and fundraising activities with political partisans and ideological factions directly involved in Supreme Court litigation or committed to particular judicial and legislative outcomes.
- In March of 2004, Justice Antonin Scalia refused to recuse himself from an important case dealing with public secrecy and the activities of Vice President Dick Cheney, a friend with whom he periodically dined and had recently joined on an overnight hunting expedition. "I do not believe my impartiality can be reasonably questioned," Justice Scalia wrote in explaining his decision. "If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined."
- In November 2010, Justice Samuel Alito appeared at a fundraising event for the American Spectator, a leading magazine in the right-wing media firmament, along with Tea Party leader Representative Michele Bachmann (R-MN.), Republican National Committee Chairman Michael Steele and numerous Republican millionaires and fundraisers. When confronted by Lee Fang of Think Progress about the propriety of his attendance at this event (which he had also attended two years prior as the keynote speaker), Justice Alito replied: "It's not important that I'm here."
- Both Justices Alito and Clarence Thomas have attended lavish retreats organized by right-wing corporate and political financier Charles Koch, a billionaire who funds dozens of Republican campaigns and whose corporation funds a foundation that pumps millions of dollars into right-wing causes. Justices Alito and Thomas also have frequented fundraising events at the Manhattan Institute, the conservative New York think tank that intervenes frequently to take sides in political and judicial conflicts. According to Think Progress, they have been chaperoned there by Paul Singer, a hedge fund magnate and major donor to the Republican Party and its candidates for office as well as to Crossroads GPS, the Karl Rove venture designed to mobilize corporate and right-wing money for Republican candidates in the wake of the Citizens United decision.
- Justice Thomas was a featured guest at the Heritage Foundation's annual banquet in 2009, where he sat and mingled with Senator Jim DeMint (R-SC) and numerous corporate leaders and Republican officials. In 2010 he was a prime speaker at a corporate fundraising event for the National Association of Broadcasters, which lobbies for major news corporations and makes frequent appearances in Supreme Court cases.
- Justice Thomas failed to disclose a major source of family income on federal forms for more than a decade, in violation of federal law. He reported that his wife Virginia earned no income when in fact she collected hundreds of thousands of dollars from right-wing groups, including nearly $700,000 from the Heritage Foundation in a five-year period. Although these groups and their members took strong positions on political and legal matters, including questions of campaign finance law, Justice Thomas ignored the clear conflict and said that he failed to disclose because he misunderstood the law.
None of these departures from ethical norms at times when the Supreme Court was hearing and deciding cases would be tolerated for a moment in major league baseball, or football or soccer or tennis, all of which impose strict rules of neutrality and objectivity on umpires and referees who must credibly judge players and teams over the course of the season.
In short, the decision by several justices to step off the bench and participate in political activities with ideological partisans promoting specific ideas about corporate rights, federal preemption, tort reform, punitive damages, the unitary executive and other hot legal and political topics compromises their proper role as credible neutral arbiters of the law. Of all the jurists in our federal system, only those who sit on the Supreme Court receive the honor of being called "Justice," and that is precisely what they are supposed to seek without regard to partisan favor or the currents of political opinion.
Given the love of baseball in America, the judge/umpire analogy -- with the help of a few Supreme Court justices -- has taken firm hold in the public imagination and in Congressional confirmation hearings for judges at all levels. Ironically, our Supreme Court justices, many of them die-hard baseball fans, need to think a little bit harder about what they can learn from the analogy they so casually invoke. Umpires don't party with the teams, they don't hunt with the players, and they don't mix up their politics or their finances with the fair conduct of the game.