Roberts' Umpire Analogy is not Quite as Simple as it Seems.--

In his brief statement to the Judiciary Committee (beginning at 16:55 of the link for Roberts' statement at this C-Span page), John Roberts twice likened a judge's role to that of an umpire:

At 18:53: Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical to make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire. . . .

At 21:55: I'll remember that it's my job to call balls and strikes, not to pitch or bat.

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."

Three views of legal reasoning are represented here, with the first umpire representing some form of essentialist jurisprudence such as so-called "mechanical jurisprudence." The second umpire would be close to the role attributed to a traditional judge in a liberal democratic society, believing in the existence of truth and in the wisdom of attempted impartiality, but also in the imperfection of people to see or understand truth. The view of the third umpire is usually attributed to legal realism or critical legal studies, though it would fit only a subset of adherents to those quite different philosophies.

While I think that Roberts with his talk of modesty was expressing a belief in the second sort of umpire, one should realize that the analogy of the umpire can cover the third sort, who thinks that he creates the existence that he is assigned to judge.

Further, I have heard that in Major League Baseball, umpires are rated on how well they call balls and strikes and demoted (or at least influenced in their future calls) if they call balls and strikes poorly. I question whether the press provides a similarly effective role judging the performance of justices.

UPDATE: Lest you think that no real umpire would express the third position, it turns out that the last view was based on a statement from a Hall of Fame umpire who died in 1951, Bill Klem. About whether a pitch was a ball or strike, Klem said, "It ain't nothin' till I call it." (Tip to readers Stephen Kaus and Craig Oren.)

Cornyn asks Roberts About Blog Post on the Umpire Analogy.--

As Orin noted, in Senator Cornyn's first question of John Roberts today, Cornyn discussed my Volokh Conspiracy post yesterday on three different ways that umpires can approach the task of judging balls and strikes.

CORNYN:

Well, I happened to be looking at my computer last night, and one of the blogs, and it's always frightening to see — to put your name in a search and look at the ways it's mentioned. I suggest you don't do that, if you haven't, until this hearing is over, because this hearing is a subject of a lot of activity and interest in the blogosphere.

One of these blogs said that your comparison of a judge to a baseball umpire reminded him of an old story about three different modes of judicial reasoning built on the same analogy.

First, was the umpire that says some are balls and some are strikes, and I call them the way they are.

The second umpire says some are balls and some are strikes, and I call them the way I see them.

The third said: Some are balls and some are strikes, but they ain't nothing till I call them.

Well, I don't know whether it's a fair question to ask you which of those three types of umpires represents your preferred mode of judicial reasoning. But I wonder if you have any comment about that.

ROBERTS:

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.

As I suggested he might yesterday, Roberts today adopted the second approach, that of a traditional judge in a liberal democratic society, believing in truth but recognizing the difficulty of perceiving it.