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Judge Jerry E. Smith and the Origins of the Judge-Umpire Analogy:

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):

  1. Of Umpires and Judges:
  2. Roberts on the Umpire Analogy.—
  3. Justice Jackson and the Umpire Analogy:
  4. Judge Jerry E. Smith and the Origins of the Judge-Umpire Analogy:
Eric Muller (www):
Purely FWIW, from Young v. Corrigan, 208 F. 431 (D. Ohio 1912):
[8] The criticism of the court here made must proceed on what Prof. Wigmore (section 784) calls the 'sporting theory' of a trial, with the judge as a mere umpire to see that the rules of the game are observed. We agree with the noted author just referred to that one of the vital 'marks of regeneration' must be found in the more responsible relation of the bench to the issue. He says (section 21):

'First, the judge must cease to be merely an umpire at the game of litigation. Often he is little more. This, to be sure, is in part the continuance of a *438 tradition, inherited from the spirit of gentlemanly sportsmanship which dominated the administration of British justice. But it has been intensified, instead of lessened, by the spirit of strenuous struggle and unrestrained persistence which drives the bar of our country to wage their contests to the extreme of technicality. The judge weakly resigns himself to the position of 'a mere automaton, or at most the attitude of the presiding officer of a deliberative assembly, with no greater powers than those of announcing the utterances or conclusions of others.' To this many circumstances conspire. But it is an old and a marked tendency among us; and, until it is rooted out, that early warning of one of the Nestors of our judiciary will still be worth heeding.'
Curse you, Dean Wigmore!
8.2.2008 10:35am
mjujab (mail):
Ilya,

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.
8.2.2008 10:57am
Philosopher:
Many lawyers have contempt for the metaphor, for a number of very good reasons:

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.
8.2.2008 11:30am
Mark Field (mail):

umpires differ in their definition of the strike zone


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.
8.2.2008 11:37am
Javert:
Off-topic quibble that is probably more appropriate for a Eugene post:

the judge-as-umpire metaphor
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."
8.2.2008 11:55am
Dave N (mail):
Two quick, unrelated thoughts:

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.
8.2.2008 12:55pm
Displaced Midwesterner:
The analogy is pretty apt really. When your team loses you will often blame the ump for being a biased hack, whether he is or not. It translates well to the judiciary.
8.2.2008 1:22pm
Roger Schlafly (www):
The year before Roberts testified with the umpire analogy, Phyllis Schlafly wrote a book on the Supreme Court that said this in the preface:
We need judges for the same reason that baseball needs umpires. Someone has to call the balls and strikes and resolve close plays. But umpires are never allowed to change the rules of the game.
8.2.2008 2:01pm
Ilya Somin:
umpires differ in their definition of the strike zone



No, the strike zone is defined by Rule 2.00.


Yes, it is. However, different umpires seem to interpret this rule very differently.
8.2.2008 5:22pm
Ilya Somin:
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.

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.
8.2.2008 5:24pm
one of many:
Yes, it is. However, different umpires seem to interpret this rule very differently.

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.
8.2.2008 6:36pm
mjujab (mail):
Philospher,

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.
8.2.2008 6:37pm
mjujab (mail):
And, for that matter, some part of a judge's job is mechanical, so that's another similarity between the two jobs. Both are part mechanical, part judgment, part moral, and (ideally) not rooting for any of the contestants.
8.2.2008 6:51pm
MarkField (mail):

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.


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.
8.2.2008 7:31pm
edit (mail):
When I was a law student, the law firm I was clerking for arranged a lunch with Judge Morris Shepard Arnold of the Eighth Circuit as speaker, and he used the analogy. This was in 1999.
8.4.2008 5:29pm