Umpires, Perspective, and the Supreme Court

by Jim Wallis 07-16-2009

“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.” – Chief Justice John G. Roberts

During his opening remarks for his own confirmation hearing in 2005, Chief Justice Roberts made this analogy that has gotten a lot of play in the media, and has already been used quite a few times during the current confirmation hearing of Judge Sonia Sotomayor. Senator Jeff Sessions expressed his concern on Monday about Judge Sotomayor’s judicial philosophy:

I will not vote for–no senator should vote for–an individual nominated by any president who believes it is acceptable for a judge to allow their own personal background, gender, prejudices, or sympathies to sway their decision in favor of, or against, parties before the court.

In my view, such a philosophy is disqualifying.

Such an approach to judging means that the umpire calling the game is not neutral, but instead feels empowered to favor one team over the other.

As a Little League baseball coach, nothing in the world would frustrate me more than an umpire who would call the game differently based upon the color of the jersey that the kids were wearing. It would be a direct affront to everything I believe about justice and fair play. But I haven’t seen that happen. In fact, the biggest problem we face isn’t an umpire that has favored one team over the other, but umpires who make mistakes in their rulings and judgment because of their lack of perspective.

You see, at our team’s age level of Little League, they can only afford one umpire for each game. They have to call balls, strikes, and outs—all from behind home plate. And their limited vision of the field of play often results in some pretty bad calls. When my son Luke’s team went on to the play-offs, and when he played on the all-star team, we had two umpires—one at home plate and one in the field—and the calls improved significantly. In fact, there were a few cases in which an initial call was reversed when the umpires were able to talk together about what each had seen from their different perspectives.

When my boys and I go to Nationals Stadium to watch a major league game, there are four umpires on the field. Their wide variety of perspectives, different angles of viewing the field, and long and distinct histories and experiences all allow for an even better application of the rules.

Still, no umpire claims to be perfect. They do not assume that they have the one true objective strike zone; or that they are always able to determine without assistance whether or not a batter’s wrists “broke” and the check was actually a swing; or that they always make the right call at first, or on a sliding steal at second; or that theirs was only view that counted in a close play at home. To do so would be claiming an omniscience that baseball umpires just don’t have.

The claim that any human is able to remain unaffected by their background or have a purely objective view of any case is to claim a quality that belongs only to God: omniscience.

It seems that Sen. Sessions and others who have picked up these talking points of criticism have mistaken a very particular view of the world, their own, and called it the objective and correct view of the world. They have claimed an attribute that only belongs to God.

The problem is that Sen. Sessions doesn’t really want impartiality; he wants judges who will see things just like he would. Of course, judges should seek to apply the law with impartiality, but, with every case, a judge has to hear and weigh facts, and make choices about how to view and interpret those facts. If this were a simple task of plugging a few statements into a syllogism or numbers into an equation, we would have a computer program to decide cases and not humans. It is exactly a diversity of perspectives and experiences, the variety of ways that a case can be approached and the information processed, that brings us closer to truth and closer to justice. A senator that wants only one perspective isn’t really concerned with truth or justice, but with the maintenance of historic dominance and control.

Some people just want to control home plate.

Categories: Diversity

Lord_Voldemort

Jim,

I'm pretty sure that the "umpire" concept isn't the one that bothered Sen. Sessions, it was the riff about the "Wise Latina" -- a riff that Sotomayor made in several different speeches and even referred to in writing.

There was also her handling of the Ricci case, in which she didn't merely make the wrong call (in the end she was overturned by a 5-4 vote so I think her critics have to allow it was close play) but she went out of her way to bury the thing as a summary judgment. Imagine an umpire who refused to signal whether a runner was safe or out at first. The game literally couldn't continue.

Everything I see about Sotomayor tells me that Ms. Sotomayor will make a poor Supreme Court Justice. Barack Obama will probably get his way on this one but the GOP is entirely in their rights to make sure he pays a political price for putting this PC mediocrity on the nation's highest court.

LV

JRMP

Lord_Voldemort, "she" was not overturned, an unanimous panel (that means all three appellate judges assigned to the case) of the Second Circuit Court of Appeals in which she participated was overturned. The decision was issued "per curiam" ("for the court" in plain language) which means no one judge can be viewed as its author. Before the case went to the Supreme Court, all of the Second Circuit judges considered whether to "rehear" the case and the majority of the judges decided there was no need for the whole Circuit to review the case.

Persons opposed to her nomination make her role in all of this sound extreme or as if she was solely responsible. All of the panel judges who heard the case thought a summary order was appropriate. And in the end, a majority of the Second Circuit judges agreed that the panel decision should not be revisited.

xfree9

First of all, everybody wants a judge to judge impartially, but that means different things to different people. Mr. Wallis, you want a judge that fits your worldview just as I want a judge that fits mine. We both want a judge that is fair and can do the best according to her perspective. Senator Sessions simply wants a judge who is not going to be biased.

Your analogy to an umpire fails for two reasons: (1) umpires can easily be replaced by a league who realizes that the umpire isn't really following the rules; SC judges cannot unless they die or resign; (2) everybody knows the "laws" of baseball, enough so that if an umpire doe such a horrible job and is doing things unfairly and outside the rules, it is clear under what circumstances he can be replaced. With the Constitution, there is so much "extensive interpreting" going on (to quote a separate blogger on Sojo's blog) that the rules can be evaded for a more "modern meaning." You can't do that with baseball.

Besides all that, what exactly did Sessions say that made him assume a godlike perspective? He simply stated a negative, saying that any judge that is biased or lets his perspective dictate how they interpret law.

hammerud

"The problem is that Sen. Sessions doesn’t really want impartiality; he wants judges who will see things just like he would." Impartiality is not always a noble thing - it depends on the issue. Personally, I would love to see judges that are partial to right and wrong and truth, especially judges who actually know and have a walk with God. In that sense, as with Senator Sessions, I want judges "who see things just as I do." I am appalled by decisions from judges that don't see things as I do. Perhaps I am wrong, but you also seem to want judges that see things "just as you do." There may be some out there, but I doubt they are impartial.

paradoxtor

"It seems that Sen. Sessions and others who have picked up these talking points of criticism have mistaken a very particular view of the world, their own, and called it the objective and correct view of the world. They have claimed an attribute that only belongs to God."

I will express my disagreements with other community members' ideas without insulting, mocking, or slandering them personally.

Is is not insulting mocking and slandering personally to say that someone has claimed an attribute that belongs to God? Besides the fact that you give nothing to support your statement, it seems to be that it violates the standards of this blog.

xfree9

Yes, but we're talking about Jim Wallis. He doesn't play by his own rules in many cases. Your point is well taken, but I don't really expect people who want to make rules and regulate the rest of us to follow their own rules. They are lawmakers, which apparently means they are above the law. (Yes, I know Wallis isn't a lawmaker, but he certainly plays with those who are in an effort to pass laws he would prescribe.)

calledme

If ever there was proof of wide varieties of perspectives about impartiality and "truth", these comments would have to be it. And frankly, the tone is as nasty as many of the confirmation hearing remarks have been.

If you've never been anything but a white male, then of course "impartiality" seems easily achievable. What has governed us for four hundred years, in this country, has been the law as interpreted by white males. This perspective has been assumed to be the "right" one.

If you've not been a woman, or a person of color, or from a different racial/ethnic background, then you cannot possibly understand why anyone could disagree with you and still be faithful to truth and justice.

About the "empathy" comment made by President Obama in nominating Sotomayor: the opposite of empathy is narcissism, which leads us to take offense when someone doesn't support our perspective and judgments. Narcissism takes the perspectives of others as inherently wrong and thus inviting critical evaluation because, if one looks hard enough, one can always find how someone else's perspective is "screwed up."

We desperately need Sonia Sotomayor, as well as Pres. Obama, to speak for those of us who've been abused by the Supreme Court in its rulings to this day (not all of them, of course). I lived in AL for 18 years -- Jeff Sessions' state -- and found that he almost never represented my hopes for the Senate. It would be refreshing to hear him debate someone who does.

realjournalist

What??? His point was a simple one: If there were such a thing as a totally unbiased judge, who makes decisions based strictly on the law with no regard for their own knowledge, experience, background, sense of fairness, etc., then there would be no need for nine Supreme Court justices. We could just have a single Supreme Justice to make all rulings.

That would be as ridiculous as your argument.

paradoxtor

Maybe you didn't intend to reply to my comment because you reply makes no sense in relation to what I said. My argument was that Wallis was violating his own standards of conduct for this site. I have trouble seeing how accusing a senator of claiming Godlike attributes does not do that. You may disagree with that assessment, but why is it ridiculous?

To address the point you make which had nothing to do with my post, why are nine enough? It would seem the better way would be to have a national referemdum on every Supreme court case. That way every knowledge, experience, background and sense of fairness etc. would be represented.

calledme

Maybe it just me, but when controversial issues like this one come from Jim Wallis or any of the other Sojourner commentators, I get much more out of it if folks put energy into thinking about the issue at hand, debating on the importance of decisions we make and how they affect us all (or something like that). It lowers us all a notch if we turn the article into a comment about how much we do or don't like Jim Wallis.

I can't see how there's anything enlightening or thoughtful or helpful in getting personal and missing the real point.

Amy_Sojo

Isn't slander only slander if it's not true? I think that by the senator's own words quoted here, it's safe to say that he favors a particular point of view as the correct one, and I think it's fair to call him out on that. Pointing out that true objectivity is an attribute that only belongs to God is not a personal insult to any particular human, it's just a statement of fact. (...from a particular world view, of course! Not everyone believes that God is omniscient or even that God IS.)

If no Senator should ever vote for any nominee who allows their own personal background, gender, prejudices, or sympathies to sway their decision in favor of, or against, parties before the court...No one would be qualified to be a judge. Even trying to be as impartial as possible, no one can completely separate their decisions from their own beliefs, which affect their interpretation of the law.

Everyone's ideals and world views are formed by their personal background, etc., including the 96% of all U.S. Supreme Court Justices that are/were white males. Does Senator Sessions believe that their decisions were all unaffected by their personal background, gender, prejudices, or sympathies? It seems so, since their behavior has established some Standard of Impartiality that all other judges are to be judged by.
...Is it mocking a person to point out how ridiculous that sounds to the rest of us? then so be it.

justintime

Sonia Sotomayor accused of being a bigoted bully by a few bigoted bullies:

* "I think it's consistent in the comments I've quoted to you and your previous statements that you do believe that your backgrounds will... affect the result in cases, and that's troubling me,"
Sen. Jefferson Beauregard Sessions III (R-AL)

* “Judge Sotomayor, you are nominated to the highest court of the land, which has the final say on the law. As such, it’s even more important for the Senate to ascertain whether you can resist the temptations to mold the Constitution to your own personal beliefs and preferences. It’s even more important for the Senate to ascertain whether you can dispense justice without bias or prejudice.”
Sen. Charles Grassley (R-IA)

* “You seem to be celebrating [the superiority of being a minority judge]…You understand it will make a difference… And not only are you not saying anything negative about that. But you are embracing [it]."
Sen. Jon Kyl (R-AZ)

* “Terror on the bench; behaves in an out-of-control manner; she is nasty to lawyers; she’ll attack lawyers for making arguments she does not like; she can be a bit of a bully.”
Senator Lindsay Graham (R-SC) (quoting anonymous sources)

xfree9

How exactly are these "bigoted"? I am very much be interested in making sure that ANY nominee would not make decisions based on anything other than affirmation of the law. If a white male were being nominated, I would expect and hope that he would be asked and questioned on whether or not he would resist the temptation to merely see things and judge based on his racial biases. In fact, it's probably even more appropriate to ask a white male this, because in general a white male is unaware of the prejudices and biases because he is in the majority.

justintime

The core elements of bigotry are (a) superiority / contempt for others and / or their views (b) intolerance and (c) unwillingness to discuss and deal with issues and difficulties in a reasonable manner.

xfree9

Your quotes do not demonstrate this, esp "c" because you only quoted things that could only potentially be used for a or b.

Sounds to me that Sessions was more interested in making sure Sotomayor would not fall under those three categories, based on the quotes you listed. It certainly doesn't "prove" bigotry on his part because he's interested in making sure that Sotomayor doesn't have a superiority complex or show contempt for others unlike her, as well as her ability to be tolerant to those not Latina like herself.

justintime

Jefferson Beauregard Sessions III, bigot

During the 1986 confirmation process, Sessions was accused of unfairly targeting black civil rights workers for election fraud charges as a federal prosecutor. A black lawyer under Sessions in the U.S. attorney’s office accused him of saying he thought the Ku Klux Klan was “OK” until he found out some of its members were “pot smokers.”

,,,the confirmation process also revealed that Sessions had once called the National Association for the Advancement of Colored People and the American Civil Liberties Union “un-American” and “communist-inspired.”

Eric77

It's generally a good idea if you're going to use someone else's words to give them credit. Here's the source.

http://www.politico.com/news/stories/0509/22165...

justintime

Thanks for the link, Eric.
The Politico website is only one of many sources for background on Sessions and his widely known bigotry.
Jeff Sessions' accusation that Sonia Sotomayor is a bigot earns the GOP hypocrisy sweepstakes award for the week.

jesse3

This post and the other post from earlier today show a pretty disingenuous unwillingness to engage with people who do not share your viewpoint.

You can go ahead and pretend to ignore that there are in fact very real differences between the way conservatives or 'constructionists' view the constitution and the left's view of it as an 'evolving document' that changes with the times and can invite rights to partial-birth abortions, among other things.

But these are really important matters that should be debated fairly and truthfully by Christians. Unfortunately, you are not doing that here.