Judges and Umpires

-- By BrandonGe - 16 Apr 2010

Introduction

The judge-umpire analogy is not new. While umpires in other sports made their way into opinions as early as 1886 in State v. Crittenden, the baseball umpire first made its way into an opinion in the 1910 case, Morrison & Snodgrass Co. v. Hazen, where the Court stressed an active judicial role in the pursuit of justice and said a judge is "not a mere umpire of a game of ball, to call balls and strikes." In a 1951 speech, Justice Jackson brought umpires into a positive light by analogizing judges to umpires while praising the impartiality of Judges Learned and Augustus Hand. But perhaps the most well-known invocation in recent memory came when Chief Justice Roberts invoked the analogy in his 2005 Senate confirmation hearings. Among many, the judge-umpire analogy as espoused by Roberts has become synonymous with judicial restraint. However, the analogy fails, both as a model of judicial restraint and as a model of impartiality.

"Umpires don't make the rules; they apply them."

By saying that umpires only apply the rules and don't make them, Roberts oversimplifies what umpires do, and the analogy fails as a model of judicial restraint.

First, umpires make their own strike zones. It took private evaluation from Major League Baseball and the computerized pitch-tracking system QuesTec to bring umpires' strike zones closer to the strike zone laid out in the official rules. Prior to stricter enforcement by the league and threat of demotion for consistently inaccurate strike zone calls, strike zones as defined by umpires diverged greatly from the official definition. Even after implementation of computerized pitch-tracking, different umpires still call different strike zones. Hence, a case can be made that umpires "make" their own rules with regards to defining the strike zone.

Second, while rare, umpires do encounter novel situations in which they must lay down a rule on the spot. A couple years ago, an ambidextrous pitcher faced a switch-hitter in what was in all likelihood, an unthought-of scenario when the rulebook was written. Since generally a right-handed batter does better against a left-handed pitcher and vice versa, the batter and pitcher repeatedly switched hands until the umpire issued a ruling favoring the pitcher: the batter has to declare what side of the plate he will bat from before the pitcher declares what hand we will use to pitch. The Professional Baseball Umpire Corporation later announced a rule that the pitcher is required to declare first.

Third, umpires consider policy goals in their calls, something eschewed by advocates of judicial restraint. Take, for example, the "neighborhood rule" in baseball: in a double play attempt, if a fielder steps in the neighborhood of second base before throwing to first, the runner will be called out at second base even though the official rules say that to make a force out, the fielder with the ball must actually touch the force base. Although application of the rule is not wholly consistent (see, for example, game 2 of the 2009 Yankees-Angels ALCS in which the runner was called safe at second base even though the Angels' shortstop was certainly in the vicinity of second base with the ball in his glove), it has been traditionally applied at the professional level because frequently, in an attempt to break up the double play, the runner will slide into the fielder at second base, and allowing the first out of a double play to be made as long as it "looks" like an out decreases the risk of injury to the fielder.

"They make sure everybody plays by the rules."

Umpires, as well as referees in other sports, do not make sure everybody plays by the rules. Studies have suggested that baseball umpires show racial bias in making calls. In basketball, there is data supporting the existence of referee bias towards superstars, the home team, and also certain races. There is also data supporting soccer referee bias against tall people.

Conclusion

There are many other flaws in the judge-umpire analogy, including the different contexts in which decisions are made (judges have much more time to contemplate than umpires, and umpires see the facts for themselves as opposed to hearing or reading them, Scott v. Harris notwithstanding), different incentives (judges are more difficult to get rid of than umpires), and different sets of rules (there are fewer rules in any particular sport and there is generally a binary set of answers, for example, a ball is either fair or foul). The judge-umpire analogy ill fits the realities of today's umpiring, and fails both as a model of judicial restraint and a model of impartiality. Although imperfect as well, perhaps a judge-Commissioner analogy is more appropriate.

This conclusion suggests that in any activity requiring human – rather than mechanical – judging, there is no such thing as “judicial restraint.” No matter how hard umpires try to be the impartial manifestation of a supposedly exhaustive set of ideal rules, it is impossible for an umpire to live up to that role. It is one thing to show that “conservatives” made a false analogy when they pointed to the umpire as an example of real-life judicial restraint. It goes farther to say that judicial restraint cannot exist in the realm of human judicial activity. But this is actually suggested by the failure of the analogy, and I think it is accurate.