Tag Archives: umpire

William Blake in the Wall Street Journal

Judges as Umpires, Umpires as Judges

By Christopher Shea

Anyone following the debate over the constitutionality of the Affordable Care Act will have been freshly reminded of the inadequacy of Chief Justice John Roberts’s comparison of Justices to baseball umpires enforcing clear rules, an analogy he famously made during his confirmation hearings. (Whatever you might say about Commerce Clause jurisprudence, it isn’t characterized by black-letter law, free from the need of human interpretation.) But in a new article in PS: Political Science & Politics, William Blake, a Ph.D. candidate in government at the University of Texas at Austin,* suggests that Chief Justice Roberts  oversimplified not just the law, in his famous analogy, but also baseball. Baseball umpires, too, Blake argues, must sometimes “make law” in the absence of clear guidance.

Like the Constitution, baseball’s rule’s contain contradictions. The problems begin right away: Rule 1.01 states that “Baseball is a game between two teams of nine players each.” So what to make of the designated hitter, a tenth player? Purists who have always claimed the designated hitter is a monstrosity are not unlike devotees of the Constitution in Exile, waiting for clear-minded justices to nullify the New Deal. And they have even clearer textual evidence!

The check-swing rule is a well-known part of the game: If a batter offers at the ball, even if he tries to hold back at the last second, it’s a strike. The usual interpretation involves “breaking the plane of home plate,” but Blake points out that this is a tradition that developed over time, not a literal rule. The definition of a check swing, he observes, “is entirely extratextual.”

Set aside the moving target that is the strike zone. (“I know it when I see it,” the Mets pitcher Ron Darling once said, tellingly echoing Justice Potter Stewart on pornography.) Unusual stadiums, like domes, requires special ground rules (is it a home run if you hit a roof beam?) The managers of the two teams are supposed to agree on these rules, but if they can’t agree the umpire can set them himself.

Quick pitches are illegal if they are made with the “obvious intent to catch a batter off balance.” Guess who has to divine such intent? The infield-fly rule should only be invoked when an infielder can catch the ball with “ordinary effort.” In deciding whether this standard is met, umpires are to consider “the effort that a fielder of average skill at a position in that league or classification of leagues should exhibit on a play, with due consideration given to the condition of the field and weather conditions.” Which is not much more clear-cut than a judge trying to decide whether police conduct “shocks the conscience,” something legal umpires are called upon to do. (Ditto calling a game on account of “unsuitable” weather conditions.)

Finally, there’s a baseball rule that at least some Justices would dearly love to have in their arsenal: “Each umpire has authority to rule on any point not specifically covered in these rules.” When the 1989 World Series resumed, after a delay caused by the Bay Area Earthquake, Blake notes,  the umpires decreed that if a tremor struck while a ball was in play, altering its course, that would be considered the moral equivalent of a bad hop.

That’s a clear case of umpires making up the rules — something the Chief Justice said they never do. However, Blake writes,

This does not mean that umpires are or should be partisan. When umpires have to fill in gaps in the rules, they should do so with an eye on the good of the game, not as a way of supporting one team over another.

*As well as, his author bio notes, “a member of the Central Texas Umpire Association.”

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Umpires and judges

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.

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