Umpires, Perspective, and the Supreme Court

"Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role."

-- Chief Justice John G. Roberts

During his opening remarks for his own confirmation hearing in 2005, Chief Justice Roberts made this analogy that has gotten a lot of play in the media, and has already been used quite a few times during the current confirmation hearing of Judge Sonia Sotomayor. Senator Jeff Sessions expressed his concern on Monday about Judge Sotomayor's judicial philosophy:

I will not vote for--no senator should vote for--an individual nominated by any president who believes it is acceptable for a judge to allow their own personal background, gender, prejudices, or sympathies to sway their decision in favor of, or against, parties before the court.

In my view, such a philosophy is disqualifying.

Such an approach to judging means that the umpire calling the game is not neutral, but instead feels empowered to favor one team over the other.

As a Little League baseball coach, nothing in the world would frustrate me more than an umpire who would call the game differently based upon the color of the jersey that the kids were wearing. It would be a direct affront to everything I believe about justice and fair play. But I haven't seen that happen. In fact, the biggest problem we face isn't an umpire that has favored one team over the other, but umpires who make mistakes in their rulings and judgment because of their lack of perspective.

You see, at our team's age level of Little League, they can only afford one umpire for each game. They have to call balls, strikes, and outs--all from behind home plate. And their limited vision of the field of play often results in some pretty bad calls. When my son Luke's team went on to the play-offs, and when he played on the all-star team, we had two umpires--one at home plate and one in the field--and the calls improved significantly. In fact, there were a few cases in which an initial call was reversed when the umpires were able to talk together about what each had seen from their different perspectives.

When my boys and I go to Nationals Stadium to watch a major league game, there are four umpires on the field. Their wide variety of perspectives, different angles of viewing the field, and long and distinct histories and experiences all allow for an even better application of the rules.

Still, no umpire claims to be perfect. They do not assume that they have the one true objective strike zone; or that they are always able to determine without assistance whether or not a batter's wrists "broke" and the check was actually a swing; or that they always make the right call at first, or on a sliding steal at second; or that theirs was only view that counted in a close play at home. To do so would be claiming an omniscience that baseball umpires just don't have.

The claim that any human is able to remain unaffected by their background or have a purely objective view of any case is to claim a quality that belongs only to God: omniscience.

It seems that Sen. Sessions and others who have picked up these talking points of criticism have mistaken a very particular view of the world, their own, and called it the objective and correct view of the world. They have claimed an attribute that only belongs to God.

The problem is that Sen. Sessions doesn't really want impartiality; he wants judges who will see things just like he would. Of course, judges should seek to apply the law with impartiality, but, with every case, a judge has to hear and weigh facts, and make choices about how to view and interpret those facts. If this were a simple task of plugging a few statements into a syllogism or numbers into an equation, we would have a computer program to decide cases and not humans. It is exactly a diversity of perspectives and experiences, the variety of ways that a case can be approached and the information processed, that brings us closer to truth and closer to justice. A senator that wants only one perspective isn't really concerned with truth or justice, but with the maintenance of historic dominance and control.

Some people just want to control home plate.

Jim Wallis is the author of The Great Awakening, Editor-in-Chief of Sojourners and blogs at www.godspolitics.com.

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Comments

[Wonderwheel]

Jim, you did a great job taking the umpire metaphor and exposing how the Republicans are using it deceptively. But the more important problem is that the umpire metaphore it self is deceptive. When Roberts said "Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role." he was decieving the American people. Judges are NOT like umpires exceptin the most cursory way. Roberts and the Republicans are deliberately misleading American when they say judges do not make law, because they are deceptively saying that the only law that counts is statutory law. Well beside statutoy law there is case law that judges make and administrative law that the executive branch makes. Judges do make all the rules and laws that are necessary to decide a case where the statutory law does not reach or is silent. Republicans deliberately misinform the public about the nature of how law is made because they want to control the types of laws that judges do make in the manner of Chief Justice Roberts' personal prejudices in favor of prosecutors over defndants and corporations over consumers. The Conservative judicial activism is the worst kind for America because their sympathies lie with the powerful who dominate and the conservative justices use their false impartiality to justifiy their domination of the weak in society.

[prudd]

Lack of perspective - it seems our world is ruled by it. Thanks for a really interesting post!

[dtghope]

Brilliant, necessary and insightful analysis. Well done, sir !

[UKOH]

Yes.

To carry on the analogy the reason that more umpires means better ruling is that each umpire has a different perspective on the play, as written in the article.

The same is true of judges. Everybody is human and brings their own perspectives to life. Therefore 3 diverse judges are better than a single judge, and 9 diverse judges are better than 3.

To have nine old white wise men as supreme court justices would be like having all umpires behind home plate. While there will be viewpoints on any decision the minute differences in perspective will mean the accurcy of the decisions are not likely to be much, if any, better than a single home plate umpire.

That is why diversity on the supreme court is so important.

[Alablanca]

GREAT POST! I add my own opinion how the Republican Senators showed pettiness, partisanship and a UNITED FRONT to mislabel Sotomayor. They were disrespectful, mocking, self-possessed and should be told that. Perhaps Chief Justice Roberts should point this out to them.
Sen. Sessions, Sen. Graham and the other Republicans should be ashamed of themselves. I have come the concliusion that the Republican Party is incapable of showing objectivity and all their decisions seem to be based on blocking Pres. Obama's efforts to improve our Nation. Is that some sort of prejudice?

[Bundenthal]

It always strikes me as a shame that "bias" has become a dirty word. It requires negative modifiers to dirty it up. We have 9 justices so that we can have 9 "biases." We have human umpires in baseball because we want to retain their biases, and good players know what those are. Good umpires, however, are also aware of their biases and so strive for consistency and predictability, and also to make sure the biases do not interfere with calling the game fairly.

If "no law" means "no law" as Hugo Black would argue, and every other word and phrase in constitution and statute were clear; if "justice" had one universal meaning and only one way to attain it; if cases consisted only of "facts" that rose to the level of undisputed "truths," then a computer would do just fine as the supreme court. But just as we do not use ESPN's "KZone" for balls and strikes, we prefer humans over technology in jurisprudence. Solomon, not Big Blue.

Oliver Wendell Holmes' famous quote that, "The life of the law is experience, not logic." would have been a wonderful starting point for a real discussion of constitutional interpretation. But a stronger judiciary, a more educated public, a meaningful discussion even just for the sake of debate, was not what the minority party wanted. Maybe getting a wise Latina is exactly what we need.

[Robert D. Stolorow - Huffpost Blogger]

I see from your post that we share a perspectivist sensibility. If you have the interest, check out my own commentary on the confirmation hearing, posted on the politics page on July 17. All good wishes.

[VHammon]

Excellent and useful analogy in this commentary. Thank you.

The ability to understand that people ALL have a unique perspective that colors their point of view and that we get best solutions when we have multiple perspectives, is a cognitive milestone. Before developing this ability people are 'self-referent' – they are the standard and others the deviation. Senator Sessions comments demonstrate that he has not yet developed this ability; he sounds like he genuinely believes that it is possible to have a totally 'unbiased' view of the law.

We would not hesitate to criticize a baseball player who was unable to run around all four bases. It's odd that we are so unwilling to acknowledge that we'd do better with people in positions of leadership who function at the highest cognitive levels of development. Cognitive, emotional and moral development milestones are not a big secret. Why not measure our leaders against these standards before handing them the keys to our treasure?

[Ronp]

Thank you as well Rev. Wallis for that very useful perspective.

VHammon my biggest surprise this past week was the scale of deference within the media and political communities. Watching them tip-toe on their opinionated (disguised at news) political grand stands without so much as a clue that collaboration of multiple perspectives indeed result in a cultural resonance that does accelerate society positively forward.

What I saw from the Republican Senators beyond the stuck on self-reference was a great deal of insecurity and desperation. Senator Sessions knew he was missing something, though his inability to believe other perspectives equal to his own do exist, points more to lack of faith in his own worldview than any of the misplaced and unsubstantiated accusations directed at Judge Sotomayor. Looks very much like the same patterns, which give us religious intolerance, sexism, xenophobia and so on.... A tongue and cheek proof of my point suggests a very simple passive test for Senator Sessions. While scanning him with a thermographic imager, just mention one phrase to him.

Arthur Davis 2010!

[Brunobear]

As an Australian where in this country the law is supposed to be commonsense, and generally is, I was saddened to see the blatant bullying by US Senators of Supreme Court nominee, Judge Sonia Sotomayor essentially to force her to accept a straight jacket of their personal design to get the job. It was humiliating to watch Judge Sotomayor having to so carefully choose her responses to try to avoid offending anyone on the face of the earth, let alone the bozo Senator(s) . If the US wants to continue to advance, that is the last thing it needs. You are literally choosing to "judge a book by the cover you are forcing it to present". The US is supposed to be an open minded, dynamic nation adapting to a fast changing World. A Country that desires to remain a force for the greater good and an economic powerhouse. Yet your Congressional lawmakers at the hearings behave like a bunch of "well dressed" controlling 1920's Bolsheviks, attempting to verbally bash the spirit of independence and fairness out of her before she even starts. There are a lot of things badly wrong with the US at the moment and public sycophancy is the first thing you guys have to get rid of. If she decides that on the facts your gun laws, civil rights, unemployment relief and so on, are not up to scratch, she should rule that way.

[ultima]

I guess that means we now all know that supreme court nominees think of themselves as gods and decide cases accordingly. They are put in that position by having lifetime appointments that have taken several well beyond their mentally productive years.

[TonyLeTigre]

By the same token, to claim to know that God is omniscient, or even that God exists at all, is to assert an omniscience that no human should claim.

[Raphi]

This is a non-sequitur argument. It is also a really nice way to make someone like Jim Wallis feel welcome on Huffpo. Of course antagonism is always the best policy, since in order to counter far right evangelicals and fundamentalists, it is necessary that every shade of theist be considered enemy.
But in answer to the apparent syllogism that: humans aren't omniscient so can't know there is a God thus can't claim God is omniscient. But it doesn't take omniscience to have the concept of omniscience obviously.
In addition, science operates under the assumption that an answer to an hypothesis is possible; that is, the universe is assumed to be understandable prior to the attempt to understand it. Which in a way, is a leap of faith. Science answers the question, "how," spirituality answers the question "why." This is analogous to a scientific description of a painting as cloth with spotches of color. While the intuitive, artistic mode of perception gives it meaning .
Those of us who have had experiences of the transcendent know it as real. To dismiss this is itself a claim of omniscience.

[DenisElliott]

If we HAVE to use baseball/umpire (and yes, I've umpired) terminology r.e. "judging", then the balls & strikes analogy mostly closely (although still not perfectly) at the trial level. The analogy breaks down at the appellate level when law/precedent isn't "on point." For SCOTUS, the issue isn't calling balls & strikes (simple cases don't wind up there), but rather establishing the strike zone!

Umpires have "different" strike zones depending on how they line up behind the catcher. Some set up on the inside top edge, which makes outside and or low pitches less consistent. Some line up in the middle, which makes all edges inconsistent. Baseball fans who are old enough remember there were once very different strike zones (in general) in the AL & NL, because in the AL umps used the outside chest protector and it tended to result in a larger strike zone. Here's where another analogy might apply - say the NL were conservatives calling smaller/tighter strike zone & the AL were liberals callling a larger one.

The bottom line though is that umps/referees aren't perfect. They are human beings, as are judges and Justices.

[stryker]

Take Greg Maddux or Jamie Moyer. They make living out of painting the corners. Sometimes they paint outside the corners. Because of their reputations,umpires mosly give (or gave, in Maddux's case) them the off the plate pitches. Others do not. Some umps call pitches above the belt a strike, as they should. Others won't. So Robert's umpire analogy is flawed. They all call balls and strikes, but they do not call them evenly. Roberts is extremely "pro-life.­" His wife runs an anti-abortion group. Do you believe he would not be influenced by his personal beliefs if an abortion case comes before the court? Do you think he'll be sleeping on the couch if he voted in favor of a pro-abortion case?

[janye]

Still giving God human characteristics? He has no human characteristics because he is not human, he is God.

[Virtuos0]

So stop referring to God as "he".

[Carpevinum]

God is "IT", just like Coke.

[dtghope]

We are made in God's image...

[RegDame]

The issue of how a judge's (or justice's) background may affect a decision was neatly framed by Justice Ginsburg, when she commented on the strip-search case's deliberations with her statement that none of her (all-male) colleagues had ever been a 13-year-old girl. AND THEN THOSE 8 BOYS STILL DID NOT UNDERSTAND!

[alpena]

Mr. Wallis: How would you go about deciding a case that asks - "Is a fetus a "person" under the 14th amendment?"

How would Sotomator decide that and how would Scalia decide that?

[ScreenName05]

Gee? I guess we know now why that is not a question for an umpire.

[alpena]

don't understand this comment

[BluestateGuyInTX]

Thank you Mr. Wallis. It can be a good tonic for those of us who are unbelievers to see a real Christian at work. It helps us to remember that just as not all Muslims are taleban not all Christians are "moral majority". You are a Christian that I think we secular humanists can work with because I feel we both have the interests of the people of this country at heart. You may be motivated by a different reason for wanting the good of the people of this country but motive doesn't matter as long as the outcome is good.