Good judges are like good umpires. Seriously.

“Judges are like umpires.”  John Roberts made that claim, but the analogy isn’t universally popular.  I’ve always liked it myself.

For several seasons I referred basketball at a high level and I’ve sat as the arbitrator in a few dozen cases.  (For that matter, I’ve held jobs where I “made the call” on whether something was a conflict of interest or wasn’t.)  When acting as judge, or as the ethics rules would say, as a “neutral,” I constantly drew on the skills and attitudes I learned from refereeing.   (I realize that umps and refs aren’t 100% identical but I don’t think Roberts was granting baseball umps any special priority; he was invoking our national pastime’s version of the sports ref.)

First, neither the ump nor the judge is supposed to want one side or the other to win. Fans and partisans can do that. Legislators too. But not umps and judges.  I refereed plenty of games where I found the players on one team or the other offensive.  But umps and judges are supposed to develop the mental discipline to set aside those kinds of sympathies.  They're supposed to reach a mental point where they’re perfectly prepared to watch some litigant or participant they like end up with a disappointing loss.

Second, judges are like umpires because they have to make a call that immediately hurts one side or the other.  Academics and policy types can write position papers or spin out theories.  That’s useful for its purposes, but it’s not judging or reffing.  Sitting as judge or wearing the ref’s jersey means that you dish out disappointment directly to people in your presence.  Sometimes you dish out massive disappointment.  That process can quickly spiral out of control, so you end up developing a deep respect for the integrity of the process.

Third, judges and umps are supposed to follow the rules or norms when the rules and norms are clear. They're not supposed to make up new rules except when rules and norms fail.  And even when they do, there are rules and norms about making up gap-filling rules and norms.

It's on this point where, imho, opponents of the analogy fail to grasp what it’s like to be a judge and an ump.  In my experience, umps and judges—and at least some people who invoke the analogy—know full well that on occasion the rules can be vague, the rules may have gaps, and that some decisions are inescapably entrusted to the ump’s or judge's sound discretion. But they also know that the successful exercise of that discretion requires discipline, humility, and a commitment to the practice.  So they're not necessarily being naive or disingenuous when they say that their job is to apply the rules, not make the rules.  That attitude is part of the craft.

Let me give an example.  In my experience, some refs say that they make calls differently at the end of the game.   For example, you may hear a ref say "you don't call that a foul at the buzzer." Other umps and refs are vehement that they make calls consistently from the first second to the last.  But what I’ve never heard is a seasoned ref or ump say “How I call fouls at the buzzer depends on what kind of mood I’m in,” or “I calls fouls at the buzzer depending on which team annoys me more" or "It depends on what I ate for breakfast." 

So being a judge or ump requires some mental discipline, some attention to role, and some humility. 

Notice, finally, how the Democrat senators framed their criticism today.  They accused Roberts of not living up to the umpire ideal.  They accused him of picking favorites and having a shifting strike zone.  In doing so, they didn’t applaud Roberts for abandoning the ump’s role.  They criticized him for abandoning it.

Comments

[Chris Manos]

I think the umpire/judge analogy is misleading, and overused. Umpires normally determine facts: a ball passing over the plate, between the batter's knees and 'letters' is defined as a strike. That's the rule/law of balls/strikes (or a facsimile thereof). When an actual pitch passes over the plate, the umpire decides, as a matter of fact, whether the ball met those conditions and was therefore a ball or a strike. It is true that neither a judge nor an umpire is routinely called upon to consider whether the definition of a strike (the "law") should change with each pitch. In THAT sense a judge is like an umpire. But when an umpire calls a strike he is deciding a fact, this is normally what we would consider the work of the jury, acting as fact finder, not the judge. The analogy would make sense in the following (unusual) hypothetical. Suppose a pitcher releases the ball, it bounces on the ground, then bounces up and passes through the strike zone. A "Roberts judge" would call "strike" and wait for the next pitch. A real umpire, (and a real judge) would 1) determine the law (i.e. check to see whether the rule book states that a "pitch" must reach the plate without contacting the ground) and then, 2) based on the law/rule, determine that the throw was, in fact, not a strike, but something else. In short, the whole analogy of judges as umpires is fundamentally inapt, at least when the judge is not in the role of fact finder (and SC Justices are normally not fact finders), and not when we think of umpiring as the process of 'calling balls and strikes' in contrast to the rare occasion when the umpire has to crack the rule book and decide if a bounced throw is a pitch at all, i.e. when the umpire has to "determine what the law is, and apply the facts to the law". Calling balls and strikes does not involve determining what the law is, and therefore is not analogous to the important work appellate judges do when resolving difficult issues.

In my view, the repetition to the 'judges as umpires' analogy sheds no light on the real responsibilities of a SC Justice. Whether intentional or not, I think Roberts' (and others)use of the analogy may result in a misunderstanding of how complex the issues that come before the Supreme Court are, and the what the work of resolving those issues involves. Can Roberts say with a straight face that he was "umpiring" when the opinion in the Ricci case included the phrase, "For the foregoing reasons, we adopt the strong-basis-in-evidence standard as a matter of statutory construction to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII". That was the heart of the case, and the "work" that the SC did. I have never been at a ball game when the umpire turned to the player and said, "today I adopt the ______ rule as a matter of statutory construction and you're OUT!"

[doc]

I know that there is a growing tendency to distrust judges--to craft more elaborate ethical rules and restrictions; to expand the scope of what is encompassed with the appearance of impropriety standard; to adopt more and better methods of intruding into judges' private lives--all in a misguided effort to try to ensure ethical judicial behavior. But the hard truth is that none of it matters a bit. Judicial ethics, where it really matters, is hidden from view, and no rules can possibly ensure ethical judicial conduct. In other words there is really no choice to trusting the judges. Maybe we need some external rules, maybe we don't. But, to my mind, we'd all be better off in a world with fewer rules and a better understanding that impartiality and diligence is an obligation that permeates every aspect of the judicial function--one that every judge has the unflagging responsibility to police himself.

[Monroe Freedman]

I thought the Democratic Senators were criticizing Roberts for lying to them about his view of his role as a justice.

On the umpire analogy, see the lead op-ed in today's (7/22) NY Times.

Incidentally, it was Joe McCarthy who first referred to Democratic politicians as Democrat politicians.

[john steele]

It's easy to overstate how often the SCOTUS is truly unbound by any precedent, and equally easy to overstate how often trial courts are. I've heard President Obama say that 95% of SCOTUS cases are largely governed by existing law. And as I've sat as a binding arbitrator and as a member of an ethics-opinion-writing committee, I've realized how many questions are unanswered even at the most basic, practical level. So, I may be an outlier, but I still very much like the umpire analogy.

And the point that I want to stress on the other side of the analogy is one that perhaps only umpires and referees know well: they know as well as anyone that their job is far from mechanical. So often when I hear legal types describes umpires and refs that way I wonder if the person offering that opinion has much direct knowledge of what it's like to be an ump or ref.

[Bo H.]

Interesting topic but to the notion that umpires deal in whether or not a pitch is a strike, as a point of fact is not correct. This is considered in baseball terms to be a "judgment call". The umpire applies the rule and makes a judgment on whether or not it is a strike or a ball. The important point here is that while you can ask for an appeal (to another umpire during the game) of a judgment call the umpire holding the ruling doesn’t have to grant it. In fact the umpire who “owns the judgment” is the only one that can release the call to another umpire . But once the judgment is released to another umpire the original umpire no longer has any rights to “call”. This sort of like an appeal that is decided in real time.

This is quite different from a “protest” that is filed with higher authorities (a higher court if you will). Judgment calls cannot be protested but in cases where you believe a rule has been improperly applied or improperly interpreted this can be protested. If the protest is upheld the game is usually replayed from the point of protest. Like a retrial.

Not sure how this applies to the Supreme Court but umpires do make a lot of judgments and interpretations of vague rules much like a judge. And you never hear about the ones they got right.

In either case.

[john steele]

Thanks, Bo. My deep experience has been in basketball, not baseball, but your comments are in accord with my experience. I've never heard an experienced ref or judge describe their function the way some lawyers and professors do when they are criticizing the analogy to umpiring. Imho, the critics I've heard have little idea of what it is like to be a serious ump or referee.