Over at Volokh Conspiracy, where the lawprofs need not ponder in despair the lives of actual people but have the luxury of living in the sanitary world of legal theory, they have been arguing over Chief Justice John Roberts analogy of judges to umpires is appropriate.
Jim Lindgren has reposted an old story worth repeating:
First umpire: “Some are balls and some are strikes, and I call them as they are.”
Second umpire: “Some are balls and some are strikes, and I call them as I see ’em.”
Third umpire: “Some are balls and some are strikes, but they ain’t nothin’ ‘til I call ’em.”
The three umpires are intended to reflect the three approaches to judicial reasoning. Judge Roberts responded to the analogy:
Well, I think I agree with your point about the danger of analogies in some situations. It’s not the last, because they are balls and strikes regardless, and if I call them one and they’re the other, that doesn’t change what they are, it just means that I got it wrong. I guess I liked the one in the middle, because I do think there are right answers. I know that it’s fashionable in some places to suggest that there are no right answers and that the judges are motivated by a constellation of different considerations and, because of that, it should affect how we approach certain other issues. That’s not the view of the law that I subscribe to.
I think when you folks legislate, you do have something in mind in particular and you it into words and you expect judges not to put in their own preferences, not to substitute their judgment for you, but to implement your view of what you are accomplishing in that statute. I think, when the framers framed the Constitution, it was the same thing. And the judges were not to put in their own personal views about what the Constitution should say, but they’re just supposed to interpret it and apply the meaning that is in the Constitution. And I think there is meaning there and I think there is meaning in your legislation. And the job of a good judge is to do as good a job as possible to get the right answer.
Again, I know there are those theorists who think that’s futile, or because it’s hard in particular cases, we should just throw up our hands and not try. In any case — and I don’t subscribe to that — I believe that there are right answers and judges, if they work hard enough, are likely to come up with them.
The lawprofs continue to argue over the merit of the analogy, with Ilya Somin arguing that if baseball umpires make the wrong calls too often, they can be easily fired from the job. Supreme Court justices are not so easily dismissed.
What strikes me as the greatest failing of the analogy is that appellate judges never actually see the pitch. They only hear about it from others.
Trial judges see the pitch, and then describe it through the prism of their own experience. This becomes the reality of the pitch, no matter how well or poorly they made their call. Should it ultimately find its way to the Supreme Court, the justices will discuss the pitch as if they were there, as if they saw it themselves.
Do they realize that they never actually saw the pitch?
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I remember the umpire debate and wrote about it back in September 2005. The umpire’s large discretion (with no appeal) in defining the Strike Zone seems to me to be the biggest problem with the analogy. Not many balls are thrown wild or right down the middle to the Supreme Court ump.
The “never saw the pitch” issue that you raise, Scott, seems applicable to a rather small percentage of cases that come to the Supreme Court — “you had to be there in court” is true only when the issue concerns the judge’s call during a trial (and the transcript doesn’t fully capture the moment). Usually, a Justice could be waiting in line for a hot dog and still get back in time to make a good ruling.
Also, even when there is an issue of a judge’s ruling at trial, a Justice gets to hear about it from the talented defense lawyer, too, nicht vahr?
I’m pretty sure most judges know they were not eyewitness to the pitch and often wish they had been.
I would have to disagree about the “never saw the pitch” being of limited application. The Volokh debate is about the Supreme Court level vision, and I think it’s applicable to both circuit as well as Supreme.
Doing both trials and appeals, by the time a case is briefed, you would never know it was the same case as the ugly, nasty street brawl at the district court level. At the circuit, everything is neat and clean and pretty.
I guess my point is that — and I could be wrong about the numbers of cases involved — a relatively small portion of the Supreme Court’s caseload concerns a judge’s characterization of something that happens or evidence presented at trial.
On appeal, whether circuit or Supreme, the courts invariably address a sanitized version of facts. It makes for cleaner appellate decisions, but it invariably ignores the confusion at the trial level. This being so, every appellate decision relies on a characterization of the facts and evidence at trial. I have never had a case where the facts in an appellate decision bear more than a passing resemblence to the evidence at trial.