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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

Baseball and the Supreme Court

As you may have heard, in his very brief opening statement for his confirmation hearings as Chief Justice of the United States, John Roberts regaled the Senate Judiciary Committee with a baseball analogy to explain his basic judicial philosophy:

Judges and justices are servants of the law, not the other way around. 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. Nobody ever went to a ball game to see the umpire….I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it’s my job to call balls and strikes and not to pitch or bat.

My first reaction to this homespun wisdom from the extremely sophisticated habitue of Washington society, with an impeccable High Tory background to boot, is that he’s being coached by the ultimate Homespun High Tory, George Will, just as Will once coached Roberts’ boss and idol, Ronald Reagan, in communications skills prior to a presidential debate.My second reaction echoed that of Armando on the Daily Kos site, who made this acute observation:

It is an interesting analogy Judge Roberts draws. And it seems to me to be an excellent argument for why Judge Roberts must answer the questions put to him by the Senate. As any baseball fan knows, umpires are not uniform in the delineation of the strike zone. Some are “hitters” umpires. Some are “pitchers” umpires. Some call the high strike. Some call the outside pitch.And when it comes to the Supreme Court of the United States, it is important that we know what Judge Roberts’ “strike zone” is. His record, the part that was not concealed by the Bush Administration, gives many of us pause regarding Judge Roberts’ “strike zone.” His stated antipathy for the right to privacy, for voting rights measures, for discrimination remedies, etc., demands followup. What does your “rulebook” say about these things Judge Roberts?

But why stop there? Maybe the Judiciary Committee should conduct the whole hearing in baseball metaphors.Worried about Roberts’ disposition towards Roe v. Wade? Maybe he should get this question:

SEN. FEINSTEIN: Judge Roberts, it’s safe to say the American League’s Designated Hitter rule, adopted in the same year that the Supreme Court announced Roe v. Wade, overturned a rule of play that stretched back to the beginnings of baseball. The DH still upsets a very large number of people who view it as a violation of the sacred canons of the game.We only have one Supreme Court, not one for each “league,” not one for pro-choice and pro-life Americans. Do you think as an “umpire” you should have the power to overturn a precedent of more than thirty years, and change the rules? Would you call out every designated hitter?

Concerned about Roberts’ views on civil rights? Okay:

SEN. KENNEDY: Judge Roberts, a few years before the Supreme Court’s Brown v. Board of Education decision–a decision your mentor, the late Chief Justice Rehnquist, deplored in at least one memo–a man named Branch Rickey unilaterally and arrogantly violated a baseball tradition going back to well beyond the date of the “separate but equal” doctine of the Supreme Court in Plessy v. Ferguson, by employing Jackie Robinson as a major league baseball player. Should an umpire in 1947 have refused to “bend the rules” and responded by calling Robinson out every time he came to bat? And if not, should today’s umpires interpret the rules to counteract all those years of “judicial arrogance” by changing the strike zone to handicap minority players who hit or pitch?

See how this works?

There’s even a nice analogy on all those economic issues where Roberts is almost a sure vote for protecting property rights against the predations of labor and Big Government:

SEN. SCHUMER: Judge Roberts, shortly after the Great Society years, baseball’s economics were revolutionized by a series of court decisions that culminated in the elimination of baseball’s “reserve clause,” which made free agency possible. As you know, to this day, baseball owners–or at least those who are not pursuing free agents–argue that this decision destroyed baseball’s balance of power and led to today’s high salaries and ticket prices.

Would you, as an umpire dedicated to the greater welfare of the game, try to reimpose the “reserve clause”? And if so, how would you do it without abandoning your role as a mere dark-robed arbiter of the rules as they stand?

Maybe Roberts should have tried football as a metaphor.

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