If there were any doubt that Judge John Roberts deserves confirmation to the U.S. Supreme Court, it was wiped away when he made the following statement in his opening remarks: “Judges are like umpires. Umpires don’t make the rules; they apply them. Nobody ever went to a ballgame to see the umpire.”
I exaggerate, but it was a wonderful moment. Not only did those three short sentences summarize Roberts’ view of his new job succinctly and with style, they showed that here is an intellectual with immense command of the law and legal theory, but who also possesses a keen common sense. They indicated that the Senate is about to confirm a chief justice who understands how to communicate with the American people, so that perhaps opinions made during his tenure will be more widely understood and accepted.
For average Americans who are annoyed by the intense media concentration on the hearings and would rather the news focus on the Red Sox/Yankees battle in the American League East, Roberts has provided a way to make the proceedings a more accessible. Just imagine Arlen Specter is Bud Selig.
Any baseball fan is familiar with the sport’s most persistent trouble. No, it’s not steroids. It’s the strike zone. And it has lessons for Judge Roberts’ Supreme Court confirmation.
On Aug. 23, Washington Nationals’ outfielder Ryan Church went 0-4 at the plate. Church’s father complained to his local newspaper, “One pitch was way above the letters and another was a foot and a half outside and they were called strikes.” In other words, the umpire was not following the written rules as accepted and understood by the players; he was making up his own.
Baseball’s rule setters intended the strike zone to be an area covering the width of home plate (17 inches), “the upper limit of which is a horizontal line at the midpoint between the top of the shoulders and the top of the uniform pants, and the lower level is a line at the hollow beneath the knee cap.” But for years umpires have ignored the rule book and set their own strike zones. One ump’s strike zone will be short and fat; another’s will be almost square; and another’s will somewhat resemble the official definition. Pitchers and batters never know which strike zone they’re going to get. Some umpires even change their strike zones in the middle of a game, further exacerbating the confusion. Members of the U.S. Supreme Court do the same thing with the U.S. Constitution. Some adhere strictly to the wording of the document as the Framers understood it; some allow for definitions and phrases to change meaning over time; and others simply ignore the language and declare that it means what they want it to mean.
As major league umpires have redefined the strike zone so that the rule-book definition no longer applies, Supreme Court justices for more than half a century have rewritten the Constitution so that parts of it are hardly recognizable. The Commerce Clause, for example, has nearly been written out of the Constitution. Just this summer, five Supreme Court justices rewrote the 5th Amendment to broaden local government power to take private property.
President Bush hopes that Judge Roberts will counteract the massive shift away from the rule book and head the court back toward the point where its members apply the Constitution as written.
Any baseball fan understands the need for the boys in blue to embody impartiality, consistency, fairness, and respect for tradition. When umpires feel unconstrained by these ideals — allowed, essentially, to set their own rules — the game becomes chaotic and unpredictable. The same goes for Supreme Court justices. When they toss out the rules in favor of their own ideals, the rule book no longer matters. What matters is judicial imagination, and that is an unacceptable substitute.
So far, most of the Senate Judiciary Committee’s questions have focused on how Judge Roberts will apply the rules. Will he stick to the written ones or make up his own? Though Roberts has a reputation as a by-the-book guy, this is no guarantee. See Souter, J. and Warren, E. for examples of justices who acted very differently than expected after their confirmations. But so far, Roberts comes across as a guy who understands that his job is to officiate, not legislate. And that is a welcome attitude. America does not need another justice who thinks he’s a major league umpire.
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