"we can only do what it seems to us we were made for, look at this world with a happy eye but from a sober perspective.”

-W.H. Auden

The Constitutional Umpires

It’s baseball season again, so it is likely that Senate Republicans and the news media will be drawing umpiring analogies in their scrutiny of President Obama’s first pick for the Supreme Court, Judge Sonia Sotomayor. It’s a smart strategy: what do Americans love more than a sunny day at the ball park, a hot dog, and simplicity?

And it works. In his confirmation hearing in 2005, Chief Justice John Roberts famously claimed, “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.” Of course, everybody ate it up, and Roberts took his place on the Court. Since that time, says Jeffrey Toobin in a recent article in The New Yorker, “In every major case…Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.” That’s some remarkably consistent pitching.

For all of its popular appeal, the umpire analogy, at least in the Robertsian form, is a bad one. You don’t have to take my word for it; just consider the opinions of MLB umpires recounted in Bruce Weber’s insightful book on adjudication in its many forms, As They See ‘Em: A Fan’s Travels in the Land of Umpires. As it turns out, even major league umpires don’t see the strike zone as an absolute concept admitting of any brand of formalism or mechanical application. For Weber, the lesson to take from these interviews with umpires is that “though fans and broadcasters may treat the [home] plate umpire as if he were a mere ballot counter, punching the ticket of each pitch as it crosses the plate and acknowledging its ostensibly obvious credentials, in truth he’s much more of an arbitrator, keeping the most contested area on the ball field from being taken over by one side or the other.” Indeed, some umpires even drew direct parallels with interpreting the U.S. Constitution and claimed that the strike zone is a “living, breathing document.”

Now, it could be that these umpires are simply terrible at their job. It seems more likely, however, that their statements represent years of experience on the diamond, the accumulated wisdom acquired by resolving countless controversies with the tender integrity of the game of baseball at stake. While fans of a team on the losing end of a call can take their certainty to the grave with them, the absolute is not a luxury of those charged as judges.

If the simplistic version of the umpire analogy and its legal formalist relatives fall short of an adequate justification of the judicial role, are we left with the conclusion that the rule of law is a sham? Is Judge Sotomayor unfit for the Court because she puts so much emphasis on her experiences as a poor, Latina woman and her capacity for empathy? Thankfully, we aren’t really backed into either corner, but it takes a bit of effort to see just why. The first step is to examine the mythology of the umpire-judge analogy. After this, we need to see that, in fact, the rule of law did not collapse when Supreme Court justices were selected for qualities other than their simple ability to recite the formal definitions of legal principles. In fact, until the modern era, it was assumed that there ought to be some regional balance and religious balance represented on the Supreme Court. Justices with particular affiliations were expected to behave differently from other Justices with other affiliations, and the net result was a Court that, barring a few egregious gaffes, was highly non-controversial. Ironically, as the mythology of legal formalism has grown in the modern era, the Court has become more and more controversial in American politics, as if our denial of the reality of politics in law has simply confused the Court.

In fact, until the modern era, it was assumed that there ought to be some regional balance and religious balance represented on the Supreme Court.

Much has been made of the Obama administration’s persistent emphasis on a capacity for empathy as a defining characteristic of a good Justice. Judge Sotomayor possesses this capacity and proudly defends it. She has claimed that, in cases involving Latina women, “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life,” and as Jeff Sessions and other Republican critics of the nominee have rightfully observed, this logic of representation is not compatible with the simplistic notion of the rule of law they have chosen to endorse. They have criticized the selection of Judge Sotomayor as a function of pure identity politics. Maybe it is, but what, precisely, is wrong with that is a question that any serious objection to Sotomayor must address. Thus far, the serious objectors have not come close. If it is possible to divorce the human element from the act of adjudication, then why don’t we have just one Supreme Court justice appointed with the most extreme care? Better yet, why don’t we create an adjudicatory computer program capable of deciding cases without even the capacity for empathy or for considering the real-world impact of a ruling? Why do most states use elections, replete with campaign advertising, for lower court appointments?

To look to our institutions and their histories is to see that the collective wisdom of our democracy has always had a perfectly justifiable uneasiness about the ability of a single human being to say what the law is and an equally justifiable confidence that in the right institutional setting, the all-too-human tendency of each of us to think we can say what the law is can be transformed into a workable consensus. The notion of representation on the Supreme Court is not nearly as radical as it seems. Not only is there historical precedent for it, but it also makes sense in the logic of a pluralistic democracy. If the simplistic umpire analogy doesn’t accurately represent the task of umpires in a battle between two teams, imagine how wildly inaccurate it is likely to be when judges are charged with managing a working relationship between myriad groups threatening to splinter off into permanent disenchantment, apathy, and alienation without feeling like those pulling the strings at least try to understand their situation.

The concern about Sotomayor’s qualities of empathy and experience should not get in the way of a smooth nomination and a fruitful career as an Associate Justice on the Supreme Court. If anything, her honesty about her perspectives should serve as a model for how a responsible republic, fully cognizant of its contingency and opportunity, thinks about and practices a responsive kind of law. The goal is not a political Court, but a self-aware Court, and the politics of representation play an appropriate role in this endeavor. Like the umpires who work in the real world of the MLB, Supreme Court Justices should be broadly representative and open-minded in their methods of interpretation because, as is so often the case, the greatest danger in law is a lack of reflexivity nourished by isolation and collective hubris and an inattentive attitude towards the real power of the people.

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