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Can Baseball Survive the Supreme Court Confirmation Process?

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By Alliance for Justice Legal Director Bill Yeomans

Judge Sonia Sotomayor may be hailed as the woman who saved baseball, but her hearings, along with those of John Roberts and Samuel Alito, are threatening real damage to the sport. Supreme Court nominee Judge Sotomayor's hearings will explore many hot-button issues, including abortion, the taking of property, guns, and Jeff Sessions' view that our civil rights laws were enacted to redress this nation's long history of oppression of the white race. But so far, no topic has received more mention than baseball -- our Great National Pastime, the perfect game, deeply embedded in our national DNA. Before it is too late, we need to declare a moratorium on baseball analogies applied to the courts.

The mess started with John Roberts' inaccurate and disingenuous description during his confirmation hearing of a good judge as a baseball umpire, whose job is simply to call balls and strikes as he or she sees them. As others have pointed out, the comparison was simplistic and flawed in many ways, but we have now entered a new danger zone. Republicans seem to be wedded to the analogy, particularly as used by John Roberts.

But, even a cursory look at the chief justice's record shows that every pitch thrown on behalf of business and against consumers is a strike. Every pitch thrown by a prosecutor splits the strike zone, but every pitch thrown by a criminal defendant bounces off the backstop. Every pitch thrown by a minority civil rights claimant bounces in the dirt, but pitches thrown by white civil rights plaintiffs all go right down the middle. Gun owners have unerring aim when targeting John Roberts' strike zone, but environmentalists, despite wearing out their arms, have yet to get one over the plate. And the amazing thing is that observers know how John Roberts will call pitches before they are even thrown. So, the logical conclusion to draw from Republicans' repeated invocation of the John Roberts-as-umpire analogy is that baseball umpires no longer need to look at pitches; they merely need to know who is pitching.

Indeed, Roberts and his cronies on the right have decided to revise the rules of baseball to fix the game even more. The Court's last act of the past term was to schedule reargument in Citizens United v. FEC, a case that questioned whether a 90-minute film slamming Hillary Clinton was subject to federal campaign finance disclosure and disclaimer requirements. The conservatives on the Court ordered the parties to brief a much broader issue, designed to give the Court a vehicle to strike down federal restrictions on commercial corporate money flowing to candidates -- an outcome that will prove particularly beneficial to Republicans who, for the first time in memory, find themselves trailing Democrats in campaign money.

The Court's action strips away any suggestion that the so-called conservatives on the Court are anything other than overt judicial activists who are trying to reshape the Court's docket to allow them to decide the issues they want to reach, whether they are presented by the parties or not. They have abandoned the traditional conservative view of the Court as a passive institution that takes the cases as they come and decides the case before it. In other words, the conservative members of the Court now appear to think that an umpire can tell the pitcher what pitch to throw if he wants it called a strike. It's time to stop the baseball analogies now. If we don't quickly divorce baseball from this Court, it will ruin baseball.