Calling "Balls and Strikes"

As the New York Times highlighted this weekend, the image of the judge as umpire has become a dominant analogy in discussions of judicial restraint. Chief Justice John G. Roberts said in the opening remarks of his own confirmation hearings in 2005: ”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.” Today, members of the Senate Judiciary committee frequently used this statement to frame their opinions about what role Judge Sonia Sotomayor might play on the Supreme Court (the rare venue in which sitting on the bench is a good thing).

An (incomplete) review of the senators’ written statements and oral testimony finds the phrase “balls and strikes” used 11 times, “umpire” or “umpires” used 16 times, and “playing field” used twice today. Sen. John Cornyn, R-Tex., perhaps appealing to his Big 12 base, went for a football simile instead. Once all of the written statements are submitted to the record and the transcripts are finalized, I’ll update with a complete word count. Excerpts of the senators’ sports infused language are below the jump:

Sen. Jeff Sessions, R-Ala.:

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.

Sen. Dianne Feinstein, D-Calif.:

Also, it showed me that Supreme Court justices are much more than umpires calling balls and strikes and that the word activist often is used only to describe opinions of one side.

So I do not believe that Supreme Court justices are merely umpires calling balls and strikes. Rather I believe that they make the decisions of individuals who bring to the court their own experiences and philosophies.

Sen. Russ Feingold, D-Wis.:

It made these decisions by interpreting and applying open-ended language in our Constitution like ‘equal protection of the laws,’ ‘due process of law,’ ‘freedom of the press,’ ‘unreasonable searches and seizures,’ and ‘the right to bear arms.’ These momentous decisions were not simply the result of an umpire calling balls and strikes.

Sen. Charles Schumer, D-N.Y.:

Just short of four years ago, then-Judge Roberts sat where Judge Sotomayor is sitting. He told us that his jurisprudence would be characterized by “modesty and humility.” He illustrated this with a now well-known quote: “Judges are like umpires. Umpires don’t make the rules. They apply them.”

It made these decisions by interpreting and applying open-ended language in our Constitution like ‘equal protection of the laws,’ ‘due process of law,’ ‘freedom of the press,’ ‘unreasonable searches and seizures,’ and ‘the right to bear arms.’ These momentous decisions were not simply the result of an umpire calling balls and strikes.

But any objective review of Judge Sotomayor’s record on the Second Circuit leaves no doubt that she has simply called balls and strikes for 17 years far more closely than Chief Justice Roberts has during his four years on the Supreme Court.

Sen. John Cornyn, R-Tex.:

To borrow a football analogy, a lower court judge is like the quarterback who executes the plays - not the coach who calls the plays.

But a few of your opinions do raise questions - because they suggest the kinds of plays you’d call if you were promoted to the coaching staff.

Sen. Tom Coburn, R-Okla.:

We expect a judge to merely call balls and strikes? Maybe so, maybe not. But we certainly don’t expect them to sympathize with one party over the other, and that’s where empathy comes from.

Sen. Sheldon Whitehouse, D-R.I.:

I particularly reject the analogy of a judge to an “umpire” who merely calls “balls and strikes.” If judging were that mechanical, we would not need nine Supreme Court Justices. The task of an appellate judge, particularly on a court of final appeal, is often to define the strike zone, within a matrix of Constitutional principle, legislative intent, and statutory construction.

The “umpire” analogy is belied by Chief Justice Roberts, though he cast himself as an “umpire” during his confirmation hearings.

…the infamous Ledbetter decision, for instance; the Louisville and Seattle integration cases; the first limitation on Roe v. Wade that outright disregards the woman’s health and safety; and the DC Heller decision, discovering a constitutional right to own guns that the Court had not previously noticed in 220 years. Some “balls and strikes.”

The liberties in our Constitution have their boundaries defined, in the gray and overlapping areas, by informed judgment. None of this is “balls and strikes.”

Sen. Ted Kaufman, D-Dela.:

A judge, or a court, has to call the game the same way for all sides. Fundamental fairness requires that in the courtroom, everyone comes to the plate with the same count of no balls and no strikes.

One of the aspirations of the American judicial system is that it is a place where the powerless have a chance for justice on a level playing field with the powerful.

Sen. Al Franken, D-Minn.:

Second, I am concerned that Americans are facing new barriers to defending their individual rights. The Supreme Court is the last court in the land where an individual is promised a level playing field and can seek to right a wrong.