JONATHAN CHAIT JUNE 30, 2010
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At least one good thing has come out of the Kagan hearings. The nominee is pushing back against the silly analogy of judges to umpires:
[Sen. Amy Klobuchar] asks Kagan whether the metaphor fits. Kagan says it does in some ways, but it doesn't in others.
Judges are like umpires because they "should not be rooting for one team or another"--we expect judges to have umpires' neutrality and to be fair to both parties. And, just as umpires are not the most important people on the baseball field, judges are "not the most important people in our democratic system of government." Judges have an important role to play in "policing constitutional boundaries" but that is a limited role--the policymakers are the people and their elected representatives."
But the metaphor doesn't work, Kagan says, because it "could suggest that law is a robotic enterprise," with the decisions "all clear cut and no judgment" needed. "That's not right," especially on the Supreme Court level.
"Judges do have to exercise judgment" and that is not easy. They must apply "the law and only the law"--not their personal or political views, but not every case is decided 9-0 because "reasonable people can reasonably disagree" about how to resolve them. In may cases there is a "clash" between different constitutional values; judges sometimes are not going to agree about the appropriate outcome.
Michael Gerson has written that anybody who doesn't believe a judge is like an umpire should not be taken seriously, so I suppose this means he doesn't take Kagan seriously.
7 comments
I have to ask - how long have you been waiting to use that headline?
- benjamin81
June 30, 2010 at 11:15am
No one should take Michael Gerson seriously. For a grown-up take on how judges actually reason, read Richard Posner's superb book, How Judges Think.
- liberal reformer
June 30, 2010 at 11:25am
I had sort of hoped that this would make conservatives shut up about the whole umpire thing: http://www.youtube.com/watch?v=PLk6KlAxDII
- rhubarbs
June 30, 2010 at 12:06pm
Isn't the reason they are called judges is that their job requires them to exercise judgment?
- zardoz67
June 30, 2010 at 12:08pm
Then Gerson should call to impeach the five conservatives on the Supremem Court, their points of view are deciding the whole game, not what the constitution and other judges and legislators have pitched.
- NR027810
June 30, 2010 at 12:28pm
Does anyone actually WATCH baseball? AL and NL umps call essentially different strike zones, and umps within each league vary a lot, too. More oddly, no umpire in any league calls the strike zone as defined in the rule book, which says knees to shoulders. Please, lets retire the umpire analogy.
- martind24
June 30, 2010 at 3:28pm
The rulebook strike zone is actually knees to the midpoint between the shoulder and the top of the pants. But to amplify martind's post, umpires call balls and strikes differently over the course of the same game. Different pitchers regularly get more or less latitude based on their reputations. Accidental factors such as a pitcher's throwing style and his catcher's stance radically alter how umpires call balls and strikes by shifting the umpire's position behind the plate. And most umpires greatly expand their strike zones in the late innings of getaway games. Given the reality of baseball umpiring, it's more fair to say that anyone who believes that a judge is like an umpire should not be taken seriously - not on jurisprudence, and certainly not on baseball.
- rhubarbs
June 30, 2010 at 3:48pm