Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Tuesday, September 13, 2005

Why a Supreme Court Justice is not an Umpire

John Roberts, sitting before the Senate Judiciary Committee, used as the foundation for his judicial philosophy the metaphor of judge as umpire calling balls and strikes. He said that a judge, like an umpire, does not make the rules, and that nobody comes to a ballgame to see an umpire. Conservatives often use sports metaphors to talk about politics. There are many reasons for this. There are also good reasons to dislike Roberts' umpire analogy, as follows:
1. Sports metaphors are culturally masculine metaphors, designed to communicate to men, who are the vote Republican in far greater numbers than do women.

2. Sports metaphors communicate that politics is properly a man's world. Women do not play in any major professional sport. They are not umpires or referees.

3. Sports metaphors marginalize the old and the disabled. Like women, they are not invited to play (yes, there are women's sports, but their status only reinforces these points).

4. Sports metaphors are a way of communicating with males outside of the elite base of the Republican party. You do not need a college education to understand and enjoy sports. It gives their remarks a "common touch." (In fact, the largest segment of non-sports-watchers are probably college-educated women).
5. Metaphors outside of basketball, football, baseball, and footraces are exceedingly rare. Judge Roberts did not call himself a tennis line judge – that does not send the right class or gender signals.

6. Baseball metaphors and football metaphors play differently. While baseball was the rural and workingman's sport of the 19th century, a professional sport since the 1870s, while football was exclusively a college sport until the 1920s. The major leagues took their current form in 1901; the NFL not until the 1960s. However, baseball was uniquely suited to radio (the players act serially, largely being stationary until a ball is hit or thrown to them) while football was better suited for television (everyone moves at once). After WWII, football became the premiere mass entertainment sport for working people, in part because it is weekends-only. Following baseball requires leisure time, the willingness to read a newspaper, or at least enough freedom at work to operate a radio or use a computer. Baseball nourishes its traditions, employs relatively modest late 19th century style uniforms, abhors glitz. Imagine if baseball were like football: scantily-clad cheerleaders, replace "take me out to the ballpark" with Janet Jackson's boob, have the players explode onto the field through a giant baseball cap, and have crude "in-your-face" celebrations for a good play. Professional football thrives on such things. Contrast "Field of Dreams" with "Any Given Sunday." In a word, baseball and football send different class signals (different than they did a century ago, by the way). It is no surprise Roberts chose a baseball metaphor.

7. Roberts, I gather, does not really watch a lot of baseball. Umpires do a lot more than call balls and strikes. For example, they determine the size of the strike zone, which is different for each player – i.e., they do make the rules. They have unfettered discretion to throw out players for infractions such as insulting the umpire. Everyone knows that umpires make "home team" calls, and famous players get away with violations that others do not. Bad calls are not precedent.

8. Baseball is not like life. The players are all making $300,000 minimum. Nobody's life is at stake on any particular call. None of the spectators will lose their rights if the calls go one way or another. When Hurricane Katrina happens, they just play somewhere else.

9. Umpires do not make accommodations for the weak, the poor, or the disabled. They do not seek justice. They do not judge wrong from right. They do not investigate motives. They do not exercise mercy. And there is no appeal. Why?

It is only a game.

Justice and politics are not games.


Dr. Strangelove said...

"Judge Roberts did not call himself a tennis line judge--that does not send the right class or gender signals."

Excellent deconstruction of Judge Roberts' testimony! Nice job. You might also mention that inappropriate or misleading "war" metaphors are used a lot by conservatives as well.

Anonymous said...

I think judges are more like the "judges" of olympic ice dancing or something (which is a "women's sport"). But saying "a judge is like a judge" is a little unsatisfying rhetorically. 

// posted by Raised By Republicans

Anonymous said... 

This is a bit George Carlin has on the differences between baseball and football. The text obviously leaves out his delivery, which I recommend everyone should get around to listening to.

For the record, as the t-shirt says, Baseball isn't boring, you are. 

// posted by Siddharthawolf

Anonymous said...

Here, for another perspective on judging, is the (entire ) dissent of the late Justice Blackmun in DeShaney v. Winnebago County Social Services, 489 U.S. 189 (1989). It is one of the most famous in modern court history for its abandonment of traditional "judicial" rhetoric. I think Judge Roberts loathes it. I find it extremely moving as a statement of what the law is meant to be.


Today, the Court purports to be the dispassionate oracle of the law, unmoved by "natural sympathy." Ante, at 202. But, in this pretense, the Court itself retreats into a sterile formalism which prevents it from recognizing either the facts of the case before it or the legal norms that should apply to those facts. As JUSTICE BRENNAN demonstrates, the facts here involve not mere passivity, but active state intervention in the life of Joshua DeShaney - intervention that triggered a fundamental duty to aid the boy once the State learned of the severe danger to which he was exposed.

The Court fails to recognize this duty because it attempts to draw a sharp and rigid line between action and inaction. But such formalistic reasoning has no place in the interpretation of the broad and stirring Clauses of the Fourteenth Amendment. Indeed, I submit that these Clauses were designed, at least in part, to undo the formalistic legal reasoning that infected antebellum jurisprudence, which the late Professor Robert Cover analyzed so effectively in his significant work entitled Justice Accused (1975).

Like the antebellum judges who denied relief to fugitive slaves, see id., at 119-121, the Court today claims that its decision, however harsh, is compelled by existing legal doctrine. On the contrary, the question presented by this case [489 U.S. 189, 213] is an open one, and our Fourteenth Amendment precedents may be read more broadly or narrowly depending upon how one chooses to read them. Faced with the choice, I would adopt a "sympathetic" reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging. Cf. A. Stone, Law, Psychiatry, and Morality 262 (1984) ("We will make mistakes if we go forward, but doing nothing can be the worst mistake. What is required of us is moral ambition. Until our composite sketch becomes a true portrait of humanity we must live with our uncertainty; we will grope, we will struggle, and our compassion may be our only guide and comfort").

Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, ante, at 193, "dutifully recorded these incidents in [their] files." It is a sad commentary upon American life, and constitutional principles - so full of late of patriotic fervor and proud proclamations about "liberty and justice for all" - that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Joshua and his mother, as petitioners here, deserve - but now are denied by this Court - the opportunity to have the facts of their case considered in the light of the constitutional protection that 42 U.S.C. 1983 is meant to provide. [489 U.S. 189, 214]


// posted by LTG