During his confirmation hearings in 2005, Chief Justice John Roberts introduced the sound bite that is now the predictable companion to Republican outrage over "judicial activism." "Judges are like umpires," Roberts analogized, adding, "Umpires don't make the rules; they apply them." Now as Senate Republicans seek to derail President Obama's nomination of Judge Sonia Sotomayor to the Supreme Court, the GOP's judge-as-umpire canard is back. Of course, that tired analogy is just as untrue - and damaging - as it was when John Roberts uttered it four years ago.
Jeff Sessions (R-AL), the ranking Republican on the Senate Judiciary Committee, was among the first to retread the worn out talking point. While declaring that a GOP filibuster of Sotomayor was unlikely, he warned that she must explain a 2005 comment that "the court of appeals is where policy is made." Despite Sotomayor's little-mentioned conclusion that, "I'm not promoting it, I'm not advocating it," Sessions Wednesday feigned concern, deeming the remark "on its face, it's troubling." But it was on Tuesday when the Alabama Senator first played ball with the soon-to-be ubiquitous GOP mantra:
"Of primary importance, we must determine if Ms. Sotomayor understands that the proper role of a judge is to act as a neutral umpire of the law, calling balls and strikes fairly without regard to one's own personal preferences or political views."
Sadly, as I first wrote during John Roberts; confirmation hearings in September 2005, the judge-as-umpire construct fundamentally misrepresents the constitutional and historical role of the Supreme Court and the Justices. That's simply not how the Court does - or should - work.
Roberts sought to assuage both left and right beginning with his opening statement. He tried to establish the theme of the hearings, namely, that Judge John Roberts is neither a right-wing ideologue nor an out-of-control judicial maverick:
Judges and justices are servants of the law, not the other way around. 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. Nobody ever went to a ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.
Almost on cue, the committee's GOP members responded as a virtual echo chamber. Even then, Jeff Sessions mimicked Roberts, stating that "What we must have -- what our legal system demands -- is a fair and unbiased umpire, one who calls the game according to the existing rules and does so competently and honestly every day." Kansas Senator Sam Brownback chimed in, telling the nominee, "You had a second point that was very apt, I thought, when you talked about the courts and baseball."
On the second day of hearings, Chuck Grassley and Orrin Hatch joined the chorus, the latter praising "the analogy of an umpire who calls balls and strikes but neither pitches or bats." Texas Senator John Cornyn, who months earlier rationalized violence against judges, further lionized Roberts, "You were quite eloquent in saying that you wanted to be an umpire; you didn't want to bat or pitch." But it was Sessions' earlier statement which best revealed the Republican worldview at work:
I don't think liberals have a right to ask the court to promote their agenda by twisting the plain meaning of words to accomplish an agenda. What we need is what you said -- an umpire, fair and objective, that calls it like they see it, based on the discreet case that comes before the judge.
Democratic Senators, including Joe Biden from Delware, Wisconsin's Herb Kohl and Dick Durbin from Illinois, weren't buying it. Neither should the American people. From its inception, the Supreme Court's unique role has been to interpret the United States Constitution and find meaning in its Articles and by definition. The Justices by both design and necessity define and make law as circumstances unforeseen by the Framers arise, law that it applied to the people, the states and all branches of the Federal government.
Who Are the Players?
Thus, Roberts' umpire analogy fails immediately in its first test: to whom do the "rules of the game" apply. In baseball, the umpire applies the rules to the teams' players and managers alone. The ump calls balls and strikes, safe or out, fair or foul. The occasional unruly player or manager is disciplined through ejection. The umpire has no authority over the commissioner or the team owners. He has no role when it comes to the rulemaker, "the league."
The ambit of the Supreme Court, of course, concerns the people, the states and the Federal Government. For the Supreme Court Justice, these are all "players", as Article III makes clear. From the earliest days of the Republic, the Marshall Court in Marbury v. Madison established the doctrine of judicial review, empowering the Supreme Court with "the authority to declare acts of Congress, and by implication acts of the president, unconstitutional if they exceeded the powers granted by the Constitution." (Richard Nixon learned this to his dismay in the 1974 Watergate tapes case.) In a stroke, Marbury entrenched the Court as the arbiter of the meaning of the Constitution.
What's The Rule?
This discussion of judicial review brings us to a second major shortcoming of John Roberts' narrow "judge as referee" model. In baseball, the rules are finite in number, definitional in nature and exist in a closed system. That is, they create a series of "yes/no" tests governing all aspects of play. For example, a strike zone is established and a pitch is either a ball or a strike. (That zone may vary slightly from one umpire to another, as individual perception and eyesight dictate.) A hit ball is either fair or foul.
In stark contrast, the Supreme Court must often decide cases where the rules may not exist or are ambiguous. Chief Justice Marshall faced this dilemma in Marbury. So did Justice Jackson, of whom Roberts spoke approvingly in reference to the Youngstown Steel case, in which the Court ruled that the President Truman's constitutional powers as commander-in-chief did not extend to seizing striking steel mills, even during the crisis of wartime. As Illinois Senator Dick Durbin pointed out to Roberts during the hearings:
You and others have compared the role of a judge to an umpire, and I promised I wouldn't get into the baseball analogies. That's one thing I will spare you from...When it comes to this use of executive power, you referred time and again to Justice Jackson in the Youngstown case. Here's what he said: "A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive powers as they actually present themselves."
Democrat Joe Biden from Delaware spoke to the broader point of ambiguity in "the rules", whether in statutory language or in the text of the Constitution. Biden used the words of Roberts' mentor, the late Chief Justice William Rehnquist, to illustrate his point:
He [Rehnquist] used the phrase "tacit postulates." He said that these tacit postulates are as much ingrained in the fabric of the document as its express provisions...Chief Justice Rehnquist made this vital point and it was about state's right and language that didn't speak directly to them in the Constitution. And he concluded that the answer was a rule he was able to infer from the overall constitutional plan. So, Judge, you're going to be an inferrer, not an umpire. Umpires don't infer. They don't get to infer. Every justice has to infer.
In later testimony, Roberts spoke in similarly pragmatic terms. He rejected the application to himself of such labels as "textualist" or "strict constructionist" or virtually anything else. Responding to GOP Senator Grassley, Roberts also made it clear that unlike his future colleague Antonin Scalia, he does place some value on legislative intent and history in divining the meaning and objective of ambiguous statutory language.
What Does the Rule Mean?
As the above suggests, umpires do not encounter cases where rules do not previously exist. They certainly do not get to determine what they mean or whether that meaning changes over time with societal developments and scientific advancements. Senator Kohl (D-WI) stressed this point in the context of the 14th Amendment's equal protection guarantees and the separate but equal doctrine advanced by Plessy in 1896 but undone in 1954 by Brown v. Board of Education:
Judge Roberts, yesterday you described your role as a judge as just an umpire, as you called it, calling balls and strikes...But as all of us with any involvement in sports knows, no two umpires or no two referees have the same strike zone or call the same kind of a basketball game. And ballplayers and basketball players understand that depending upon who the umpire is and who the referee is, the game can be called entirely differently.
For example, the Fourteenth Amendment which guarantees equal protection under the laws to all citizens, was written at a time when schools were in fact segregated based on race. And yet, in Brown v. Board of Education, the equal protection clause was interpreted to find segregated schools unconstitutional. And you, of course, have endorsed that decision. No one disagrees with that conclusion today, but would a neutral umpire, as you described yourself yesterday, have decided back in 1954 to expand the words of the Constitution outside of the strike zone?
Justice-to-be and not Umpire Roberts was quick to respond in the positive, stating, "the framers spoke in broad language. And whether they specifically addressed the question of public education or not isn't the limitation. Their intent was not limited to the particular problem." The Brown decision, Roberts concluded, "is more consistent with the Fourteenth Amendment and the original understanding of the Fourteenth Amendment than Plessy v. Ferguson."
Ohio Republican Mike Dewine offered perhaps the simplest and most fitting explanation of the role of a Supreme Court Justice. "Justice White," Dewine noted, "said the role of the United States Supreme Court was simply to decide cases -- to decide cases." Dewine went on to conclude, "The Constitution does not give us all the answers. It does, however, create the perfect process for solving our problems."
Umpires don't have a process. They don't have to interpret the rules. They merely rule on facts, not cases.
As it turns out, the baseball analogies - and ironies - don't end there. Fourteen years ago, Judge Sotomayor played a key role in resolving the 1995 baseball strike. As for Chief Umpire John Roberts, he has emerged as what CNN legal analyst Jeffrey Toobin decried as a "doctrinaire conservative" who despite his past humility "has served the interests, and reflected the values, of the contemporary Republican Party." Even Jeffrey Rosen (yes, the same Jeffrey Rosen who just weeks ago smeared Sonia Sotomayor before nevertheless concluding Tuesday, "Of course, Judge Sotomayor should be confirmed to the Supreme Court"), sounded like a baseball fan when assessing John Roberts' performance behind the plate. After initially lavishing Roberts with praise, by the end of his second term on the Court a frustrated Rosen lamented:
"Will Roberts ever get better?"
UPDATE: As ThinkProgress just noted, Senator Sessions bungled his talking point on NBC's Today Show this morning, confirming that the Supreme Court Justice isn't an umpire after all:
"But I do think there’s a greater power on a Supreme Court Justice to declare the Constitution says this or the Constitution says that. And it’s almost the same — it, indeed, virtually is the same — as writing the Constitution itself."