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:
Justice Jackson and the Umpire Analogy: As Ilya's post suggests, then-Judge John Roberts was not the first to compare the role of a judge to the role of baseball umpire. Indeed, the comparison probably goes back to the invention of baseball, and at the very least has been around for many decades. I'm reminded of one notable usage, Justice Jackson's description in 1951 of how Second Circuit judges Learned and Gus Hand approached the job of deciding cases:
[Learned and Augustus Hand] have represented an independent and intellectually honest judiciary at its best. And the test of an independent judiciary is a simple one—the one you would apply in choosing an umpire for a baseball game. What do you ask of him? You do not ask that he shall never make a mistake or always agree with you, or always support the home team. You want an umpire who calls them as he sees them. And that is what the profession has admired in the Hands.
Roberts on the Umpire Analogy.—

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).

Of Umpires and Judges:

As the posts in this thread suggest, Chief Justice Roberts' analogy between judges and umpires has many antecedents. Lawprof Eric Muller takes the prize for finding the earliest judge-umpire analogy so far, a 1912 district court decision.

Many people criticize the umpire-judge analogy because the rules of baseball are much clearer than those of constitutional law and give umpires less discretion than judges have. This criticism is, I think, overstated. Umpires exercise a great deal of discretion over the size of the strike zone, when to throw players and managers out of the game, and other important issues. As in legal theory, there are even broad philosophical disagreements as to the best method of umpiring. For example, some believe that the umpires should strictly enforce the rules as written (a position roughly analogous to textualism in legal interpretation). Others adhere to longstanding traditions that in some cases diverge from the letter of the rules (e.g. - the rule against catchers blocking the plate is often left unenforced); this is similar to precedent-based reasoning in law. There are also some umpire practices that seem analogous to "purpose-based" legal interpretation.

Where the judge-umpire analogy really breaks down is not in the realm of interpretative theory but in that of incentives. Unlike federal judges, baseball umpires don't have life tenure. Major League Baseball can fire them or discipline them if it determines they aren't doing a good job. MLB also has a lot of discretion in deciding which umpires will call which games (e.g. - picking only the best umpires to do the World Series). On the other hand, federal judges are extremely difficult to remove, and the political branches of government don't have much control over which judges will hear which cases - especially at the Supreme Court. Thus, unlike with umpires, it's much more important to pick the right people for the job from the start. If you pick the wrong ones, they're likely to plague you for decades to come.