Some of you might recall my post about the umpire analogy not being as simple as it seems, which Senator Cornyn read to Justice Roberts and asked him about during his confirmation hearings.
I wrote:
Roberts' comparison of a judge to a baseball umpire reminds me of an old story about three different versions of judicial reasoning, built on the same analogy.
First umpire: “Some are balls and some are strikes, and I call them as they are.”
Second umpire: “Some are balls and some are strikes, and I call them as I see 'em.”
Third umpire: “Some are balls and some are strikes, but they ain’t nothin' ‘til I call 'em.”
It was in the 1980s that I first heard that story about the three sorts of umpires and its relation to legal reasoning.
Senator Cornyn said that he read my story on the blogs and asked Roberts “which of those three types of umpires represents your preferred mode of judicial reasoning.”
Roberts responded:
Well, I think I agree with your point about the danger of analogies in some situations. It's not the last, because they are balls and strikes regardless, and if I call them one and they're the other, that doesn't change what they are, it just means that I got it wrong. I guess I liked the one in the middle, because I do think there are right answers. I know that it's fashionable in some places to suggest that there are no right answers and that the judges are motivated by a constellation of different considerations and, because of that, it should affect how we approach certain other issues. That's not the view of the law that I subscribe to.
I think when you folks legislate, you do have something in mind in particular and you it into words and you expect judges not to put in their own preferences, not to substitute their judgment for you, but to implement your view of what you are accomplishing in that statute. I think, when the framers framed the Constitution, it was the same thing. And the judges were not to put in their own personal views about what the Constitution should say, but they're just supposed to interpret it and apply the meaning that is in the Constitution. And I think there is meaning there and I think there is meaning in your legislation. And the job of a good judge is to do as good a job as possible to get the right answer.
Again, I know there are those theorists who think that's futile, or because it's hard in particular cases, we should just throw up our hands and not try. In any case — and I don't subscribe to that — I believe that there are right answers and judges, if they work hard enough, are likely to come up with them.
One of the most famous ethics articles of the 1970s was built on the idea of a judge as an umpire: Marvin E. Frankel, The Search for Truth: An Umpireal View, 123 U. Pa. L. Rev. 1031 (1975).
Related Posts (on one page):
In theory, a robotic device could be a baseball umpire. It's an interesting AI question how conceivable it would be to do this in the law, but I've often wondered as a thought experiment if it could ever be possible to bifurcate or sequester judicial panels such that the judge(s) construing a given text wouldn't be aware of the results to which their constructions would lead.
It is also interesting to note also that some sports have done away completely with human umpires, judges, or referees, relying instead on cameras and computers -- track, swimming, horse racing -- which rather tends to undermine the umpireal theory of the judiciary. Let's just say that there is an irreducible level of actual (that is, non-quantifiable) judgment that is necessary on the bench.
If Jim's order is mixed up, how was Roberts choosing the one in the middle if he chose "call em as I see 'em"?
Well, that particular question also happens to be a power struggle in baseball too. Umpires don't like to call the "high strike" mandated in the rule book, for no reason I can see other than to assert their own authority. Were they to do so to "help the little guy" (say, the Washington Nationals) as a certain presidential candidate has hinted vis-a-vis judicial philosophy, I can't see them getting very far.
Likewise, while the rule book in the judge's case is the Constitution, various traditions of precedent somewhat at odds with the Constitution have built up over time involving matters more grave than high strikes, which when applied in a non-prejudicial manner have been accepted as similarly inevitable and relatively harmless. Prejudical variants, such as Roe-v-Wade or Dred Scott, have met with less acceptance, for similar reasons.
You offer a plausible alternative order, which may or may not be the conventional one. I don't know.
The order I used reflects the decreasing view of objective reality. The first believes in objective reality and in his ability to see it. The second believes in objective reality, but believes that humans are fallible in trying to discern it. The third does not believe in objective reality that exists outside himself. That's the logic of the order I used. I think it's more about objective reality than degrees of certainty.
And I think that was how I heard it 20 years ago, but I might be wrong.
Jim
I later asked CJ Roberts if he had ever heard that story before or if he was prepped on an answer the night before. He said No.
Steve's argument is that I got the order wrong back in 2005, as well as today.
Jim L.
Thanks. I figured it out when I saw your response.
You may not have seen this comment I left in another thread, so I'll repeat it here. Would you please let us know when your threads will close? It seems your default practice is to keep them open 24 hours, but since you make exceptions both longer and shorter, it would be helpful to know what to expect.
Thanks.