Spring Training is underway in Florida and Arizona! To celebrate the return of the Boys of Summer, I have whipped up a couple of excerpts from a paper I have written about judges and baseball umpires. I hope you enjoy it.
The nexus between the legal academy and baseball is long-established and rich. Thus, it is unsurprising that then-Judge John Roberts used a baseball analogy to describe his views of the role judges ought to play in the political system. During his confirmation hearings, Roberts stated: “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 ballgame to see the umpire.” This analogy was criticized by legal scholars as faulty in that it mischaracterizes the nature of judging as formalistic. As a Little League umpire, I believe the analogy is flawed because it mischaracterizes the nature of umpiring as formalistic.
A more accurate and detailed explanation of umpiring provides a useful illustration of the differences between legal formalism and legal realism. Umpires encounter many of the same problems legal realists argue that judges face: the rules of baseball are often incomplete, indeterminate, and made of artificial constructs that are difficult to apply in the real world. Further, a purely formalistic approach to umpiring undermines the fundamental values of our national pastime, which is why umpires often stretch or even flat out ignore some parts of the rulebook for the good of the game.
Consider what a formalistic application of the rules of baseball would require of an umpire when infielders attempt to turn a double play. The rules of baseball state a fielder can only record a force out if he has possession of the ball and touches a base before the runner arrives there. But often times when the shortstop flips the ball to the second baseman, the second baseman will be near second base, without actually touching it, before throwing on to first base to complete the double play. In this situation, called the “neighborhood play,” the umpire will still call the runner out at second base.
The rulebook provides a clear definition of a force out, and usually these plays are not very difficult to adjudicate, so why does the umpire ignore the rulebook? They do so to protect the safety of the second baseman. If the second baseman were required to touch second base before throwing on to first base in this situation, he risks a collision with the runner sliding into second. In fact, runners are taught to attempt to break up a double play by colliding with middle infielders, thereby disrupting their throw to first base. Thus the second baseman will touch an area near second base that will allow them to be far enough away from the sliding runner to complete the throw to first safely.
And let us not forget the strike zone, the definition of which is perhaps the worst artificial construct in the rulebook. The confusing nature of the strike zone prompted former Mets pitcher Ron Darling once quipped in Stewart-esque fashion: “I can’t really describe what a strike is, but I know it when I see it.” Whether the object is a twelve-to-six curveball or a racy movie, judges and umpires often cannot apply rules formalistically.
Thus, the judges as umpires analogy ultimately holds some value as a method of explaining the role of courts in an American democracy, but not in the way posited by Chief Justice Roberts.