Tag Archives: legal umpire

About That Umpire Analogy…

In the charade labeled “hearings” on Brett Kavanaugh’s nomination to the Supreme Court, we have once again been treated to the facile comparison of judging and “umpiring,” first used to great effect by now-Chief Justice John Roberts.

There has been plenty to criticize about these hearings, even if the unconscionable and un-American treatment of Merrick Garland isn’t still sticking in your craw. Like so much of federal governance, which has abandoned even the pretense of concern for the common good, the process of selecting a Supreme Court Justice has devolved from a consideration of the candidate’s character and qualifications into a battle for partisan dominance.

Even before the late-breaking allegations that he tried to rape a young woman while in high school–allegations that appear more credible by the day (why else would Senator Grassley have previously secured and pocketed that letter by 65 women saying Kavanaugh was a nice guy), and considerable evidence that he had perjured himself during his prior confirmation hearings, Kavanaugh had emerged as a (very accomplished, clearly intelligent) partisan hack.

We shouldn’t be surprised by either the extreme partisanship or the lack of candor; that’s why he was nominated.

His unwillingness to really engage Senators’ questions, and his pat (non)responses have been par for the course, as the process has become more superficial over the years. The “umpire” analogy is of a piece with the smug responses we’ve come to expect, but my cousin–a doctor with a blog of his own that I quote from time to time–had a perfect reaction to that bit of sophistry:

I usually devote time to exposing health frauds and quackery. But now, I can’t resist bigger prey, namely the U.S. Supreme Court. Recently candidate judge Brett Kavanaugh stated that he likened his Judicial position to that of an “umpire,” an opinion previously attributed also to Chief Justice Roberts during his early hearings in 2005. This assertion, while seeming to express purity and impartiality, is patently false!Why? Because we can first use the example of a real umpire, who works individually in a baseball game and makes binary decisions such as “safe” or “out.” Although usually easily decided, borderline decisions can be resolved by instant video replay, again observed by a single person, usually the umpire himself.

Now let’s extend this analogy to the supreme court: Using the baseball analogy, we place nine justices, or “umpires,” near first base, in order to judge outcomes. A ground ball results in a close call at this base, and our justices then, after thorough discussion, decide that, by a vote of 5 to 4, the runner is out. But the minority of 4 think, possibly correctly, that he is safe. Sound ridiculous? It is!

Here is what makes this scenario so ridiculous. Out of necessity, judges make complex decisions that are subjective, vulnerable to individual bias, education and background, usually require more than one person, and are subject to later reversal by other courts or, in the case of the Supreme Court, even the same court in later years. Examples of reversals are manifold and include such issues as legitimacy of slavery, equal access to public restaurants and schools, etc., etc. Does that description sound even remotely like an umpire? I think not!

I’d say that’s an excellent diagnosis!