The Umpire Strikes Back

John Roberts's apt baseball simile

“Judges are like umpires.” Among the hundreds of thousands of words spoken by senators, witnesses, and John Roberts himself across the four days of his confirmation hearing in September 2005, those four words uttered by Roberts in his opening statement stood out.

Two weeks later, the junior senator from Illinois, in explaining his vote against Roberts’s nomination as chief justice, would offer his own sporting image in support of a very different vision of judging. Roberts’s simple simile emphasizing the judicial duty of impartiality would prove to have much greater public appeal than Barack Obama’s convoluted “empathy” standard for the “last mile” of a “marathon.”

The disparity illustrates a broader feature that has marked Supreme Court confirmation battles since then: the triumph of conservative rhetoric on the role of judges.

* * *

John Roberts’s confirmation hearing for his new nomination as chief justice began on September 12, 2005, just a week after the hearing on his first nomination to replace Justice O’Connor had been scheduled to start. The hearing opened with 10-minute statements by each of the 18 senators—ten Republicans, eight Democrats—on the Judiciary Committee, who offered their varying framings of what they were looking for in a Supreme Court justice and what was at stake in the hearing.

Democratic senators set forth a view popular on the Left. “At its core, the Constitution envisions ever increasing protections of human liberty and dignity for its citizens,” declared Joe Biden. “The judgment of history,” Dick Durbin told Roberts, will turn on the question whether “you restrict the personal freedoms we enjoy as Americans or … you expand them.” “The American people,” Chuck Schumer told Roberts, “need to assess not only the sharpness of your mind, but also the fullness of your heart.”

These senators weren’t envisioning “ever increasing protections” of the “personal freedoms” to own property or guns, or to live out one’s religious faith in the workplace, or to run one’s business as one sees fit. They had a progressive agenda in mind, and they weren’t content to leave that agenda in the hands of legislators like themselves. They instead wanted justices who in “the fullness of [their] heart[s]” would indulge progressive sympathies to override democratic enactments that stood in the way.

Roberts’s umpire simile succinctly repudiated this vision of judging:

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire….

If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it’s my job to call balls and strikes and not pitch or bat.

Umpires don’t look to their hearts in deciding whether a batted ball is fair or foul, and judges shouldn’t look to their hearts in deciding whether a statute runs afoul of the Constitution. Umpires have a paramount duty to be impartial. So do judges. Umpires don’t substitute themselves for the players. Neither should judges usurp the roles of the political branches.

Roberts’s umpire simile sparked a lot of commentary, some of it insightful, most of it not. One common criticism was that the simile didn’t capture the entirety of what the role of a Supreme Court justice is. That observation is obviously correct, but trivially so.

A good simile conveys similarities. A simile is not a definition or an assertion of identicalness. So just as Roberts’s simile doesn’t mean that judges wear masks and chest pads, it doesn’t undertake to provide a comprehensive account of what judicial decision-making consists of. It instead emphasizes a feature that the Left was implicitly denying: that judges, as servants of the law, have a duty to apply the law impartially.

* * *

In his statement explaining why he would vote against Roberts’s confirmation, Barack Obama provided his contrary account of what judging consists of:

[W]hile adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases -- what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy….

[I]n those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.

Obama’s marathon metaphor is remarkably clumsy. I doubt very much that any judge thinks of the decision-making process as akin to a marathon. There is certainly no reason any ordinary person would. Obama’s claim that the “critical ingredient” in deciding difficult cases “is supplied by what is in the judge’s heart” conflates two very different meanings of “heart.” A runner in the last mile of a marathon might be struggling to muster the grit, the courage, the determination to finish, but he wouldn’t be pondering his “deepest values,” “core concerns,” “broader perspectives on how the world works,” and the “depth and breadth” of his “empathy.”

In running for president, Obama restated his empathy standard (without the awful marathon metaphor) and explicitly contrasted it with Roberts’s umpire simile:

Good intellect, you read the statute, you look at the case law and most of the time, the law’s pretty clear. Ninety-five percent of the time. Justice Ginsburg, Justice Thomas, Justice Scalia they’re all gonna agree on the outcome.

But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is—what is in the justice’s heart. What’s their broader vision of what America should be. Justice Roberts said he saw himself just as an umpire but the issues that come before the Court are not sport, they’re life and death. And we need somebody who’s got the heart—the empathy—to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old—and that’s the criteria by which I’ll be selecting my judges.

* * *

The triumph of Roberts’s umpire simile over Obama’s empathy standard is no better shown than in the testimony of Obama’s own Supreme Court nominees.

Asked at her 2009 confirmation hearing about Roberts’s “view that judges are like umpires simply calling balls and strikes,” Sonia Sotomayor responded that while “analogies are always imperfect, … what judges do, like umpires, is to be impartial and bring an open mind to every case before them.” She emphatically rejected the notion (as phrased in a question to her) that judges can “rely upon some extra-legal concept such as empathy”: “We apply law to facts. We don’t apply feelings to facts.”

Likewise, Elena Kagan at her hearing a year later identified two large ways in which Roberts’s image was an “apt metaphor” (even as, “like all metaphors, it does have its limits”):

So let me start with the ways in which I think it is an apt metaphor. The first is kind of the most obvious, which is that you expect that the judge, as you expect the umpire not to have a team in the game—in other words, not to come onto the field rooting for one team or another. You know, if the umpire comes on and says, you know, I want every call to go to the Phillies, that is a bad umpire. . . . And the same for the judge. So, you know, to the extent that what the umpire [metaphor] suggests [is] that there has got to be neutrality, that there has got to be fairness to both parties, of course, that is right.

The second thing that I think is right about the metaphor—and I think that this is what the Chief Justice most had in mind, if I remember his testimony correctly—is that judges should realize that they are not the most important people in our democratic system of Government. They have an important role. Of course, they do. We live in a constitutional democracy, not a pure democracy. And judges have an important role in policing the constitutional boundaries of our system and ensuring that governmental actors, other governmental actors do not overstep their proper role. But judges should recognize that that is a limited role and that the policymakers of this country and the people who make the fundamental decisions for this country are the people and their elected representatives, whether in Congress or in the executive branch.

Kagan was much less kind to Obama’s empathy standard:

Senator KYL: My first question is, do you agree with him [President Obama] that the law only takes you the first 25 miles of the marathon and that the last mile has to be decided by what is in the judge’s heart?

Ms. KAGAN. Senator Kyl, I think it’s law all the way down. When a case comes before the court, parties come before the court, the question is not do you like this party or do you like that party, do you favor this cause or do you favor that cause. The question is, and this is true of constitutional law and it’s true of statutory law, the question is what the law requires. Now, there are cases in which it is difficult to determine what the law requires. Judging is not a robotic or automatic enterprise, especially on the cases that get to the Supreme Court. A lot of them are very difficult and people can disagree about how the constitutional text or precedent—how they apply to a case. But it’s law all the way down, regardless.

* * *

Various critics on the Left complain that conservative rhetoric about the role of judges in our constitutional republic is simplistic. They might well be right. After all, is there anything in our public discourse that isn’t susceptible to that charge? But as the contrast between Roberts’s umpire simile and Obama’s empathy standard illustrates, conservative rhetoric has time and again proved itself both more appealing and more coherent than whatever the Left has offered. The political appeal of conservative rhetoric about judging has been a big factor in the broader political triumph of the conservative legal movement in the judicial-confirmation process.