I should have noticed this before. But it turns out that Fifth Circuit Judge Jerry E. Smith (the judge co-conspirator Todd Zywicki and I clerked for) analogized judging to baseball umpiring some two years before Chief Justice John Roberts famously used the same metaphor in his confirmation hearing for the Supreme Court. In a February 2003 interview with Howard Bashman of How Appealing, Judge Smith said that "A judge should not consider his or her personal preference as to outcome, any more than an umpire should call balls and strikes based on which team is his or her favorite." I don't claim that the Chief Justice got the idea from Judge Smith. I don't even know if Judge Smith's use of the analogy was the first one. However, it does seem to be the case that Judge Smith used it before Roberts. Since Judge Smith is a big baseball fan, it's not surprising that he would use an analogy from that sport.
Like most metaphors, the judge-umpire analogy is an oversimplification of reality. For example, there is much more disagreement over judicial philosophy than over umpiring philosophy. On the other hand, umpiring is more complex than some detractors of the metaphor realize. Just as judges differ in interpretive philosophy, umpires differ in their definition of the strike zone, the amount of offense they are willing to tolerate from players and managers before kicking them out of the game, and so on. Limited as it necessarily is, the judge-as-umpire metaphor is a good shorthand way of emphasizing the judge's duty to set aside his policy preferences and be impartial between litigants.
Related Posts (on one page):
- Of Umpires and Judges:
- Roberts on the Umpire Analogy.—
- Justice Jackson and the Umpire Analogy:
- Judge Jerry E. Smith and the Origins of the Judge-Umpire Analogy:
As a former umpire, I've never understood the contempt some professors have for the metaphor. I love the metaphor. Yes, umpiring is complex, takes judgment, and so on. But, over and above that, the key to the metaphor is not that law is seen as simply mechanical, but rather that when the complex arts of judging and umpiring are done correctly, the judge or umpire is the only person present who doesn't care who wins.
1) Calling balls and strikes is merely an exercise in perceiving facts/events and deciding where they fit into clearly defined, objective criteria. Calling balls and strikes is more like being a juror than a judge, because jurors witness facts and decide whether they fit into the instructions given to them by a judge. However since those instructions are themselves vague and require jurors to make value judgments (was that really "willful" or "negligent"?), even that's not a good metaphor.
2) What judges do requires judges to make moral/value decisions. What is a "reasonable expectation of privacy?" What does "freedom of speech" mean and require? Judging is the exercise of power, constrained by various rules and norms. It's more like being the Baseball Commissioner (back when that meant something) than it is being an Umpire. It's just really inapt as an analogy. While a judge might be disinterested in whether a particular party wins or loses, just as the Commissioner might not care if the Yankees or Red Sox win the World Series, a judge is using his/her own beliefs and moral judgment when he/she makes value choices.
3) One reason Roberts' comment drew a lot of criticism is because most people suspect that he doesn't believe that either and was just using a carefully crafted line to appeal to the popular conception of judging as a neutral application of settled rules.
No, the strike zone is defined by Rule 2.00.
The analogy is particularly inapt when it comes to the Supreme Court. Whatever else umpires may do, they do NOT get to establish the rules of the game. SCOTUS justices do.
This is an analogy not a metaphor.
"Analogy is when we say that part of X resembles Y; analogy has it's root in the Greek work analogia meaning 'proportion'. In analogy there is no replacement, only aspectual comparison, and implied in this is that if X resembles Y in certain states, there is a chance that other similar states will also be found."
1) When you are umpiring a Little League game and your son is on one team and your secretary's team is on the other, I guarantee from personal experience that you will be as objective as you can possibly be.
2) Something I often do when analyzing any issue is to ask myself the very legitimate question, "Would I feel the same way if the other side did it (or someone I liked less or more)?" If the answer is "no", whether it involves politics, litigation tactics, or whatever, then I know I am not being objective.
An apt example from a decade ago: I argued then that lying to a federal grand jury was an impeachable offense--and worthy of removal when the President did it. I thought about whether I would feel the same way if a President I liked more engaged in the same conduct. When I concluded that agreement with Administration policies did not change the answer, then I could honestly say that my position was not based on mere animus toward the current President.
No, the strike zone is defined by Rule 2.00.
Yes, it is. However, different umpires seem to interpret this rule very differently.
Actually, SCOTUS justices aren't supposed to do that either. It's done by the Constitution and statutes. Of course, the justices sometimes ignore those rules or twist them. But the same can be said of baseball umpires.
What? Next you'll be telling me some judges differ in deciding what constitutes a "reasonable expectation of privacy". /sarcasm
Much like with judges the vast majority of the "rules" used by umpires are well defined, however there are areas which specifically call for use of personal judgment. (Since it came up recently) a switch hitter can only change sides when up against an ambidextrous pitcher until it becomes a "mockery of the game"?, certainly a subjective call on the part of the umpire. More than once a century, I can recall umpires having to decide when someone in encroaching the plate, whether a batter was hit deliberately, the difference between threatening the batter brush a batter back and so on. And while hitting someone while insulting their mother is certainly "unsportsmanlike conduct", lesser actions can also require that sort of call.
Do you have extensive experience in umpiring? My guess is that you don't. Your description of umpiring is thin to the point of being inaccurate.
Umpires have to interpret rules, interpret exceptions to rules, and, yes, they do make value and moral judgments in the spirit of the game.
As one of many pointed out, it depends. Some parts of the Constitution are "hard-wired" (age limits, # of Senators, etc.). They are like the strike zone and umpires shouldn't change them (not that they don't -- Eric Gregg, anyone? -- but that they shouldn't). Other parts call for discretion and, yes, judgment (cruel and unusual, "liberty", "due process"). The strike zone is not a good analogy for those latter issues.