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Thursday, July 01, 2010

Did Kagan bury the umpire analogy? Maybe

Elena Kagan took on the judge-as-umpire/ball-and-strike meme yesterday in response to a question from Sen. Klobuchar and knocked it out almost as successfully as she could. No transcripts to be found, but here is the video and some thoughts after the jump.

1) Kagan said it was apt in saying that judges, like umpires, should not have a "team in the game," should not come onto the field rooting for one team over another.

OK answer, although she lost points for not using the Twins in her hypo in response to a question from a Senator from Minnesota.

As I have argued before, to the extent this is what the metaphor means, it does no work. No one believes a judge should be "rooting" for one party over another and we don't need an analogy to baseball to drive the point home. Besides, no one seriously believes an umpire "roots" for one team or that a judge "roots" for one party.

But there's more something going on here, tied to the complexity of law and the fact that different judges can reach different conclusions (which Kagan talks about later). An umpire may not be rooting for a particular team, but an umpire who interprets and enforces certain rules a certain way may benefit one team over another. An ump with a wider strike zone will make calls more to the benefit of a team with control pitchers who work the outside corner; an ump with a narrower zone benefits teams with patient hitters who work counts. Similarly, I would not say that Justice Scalia "roots" for the government in a challenge to abortion laws. But given that his reading of the relevant (far-less-determinate) rule is that Due Process does not provide a liberty to obtain an abortion, he is likely to find for the government in any challenge to a restriction on abortion. That does not mean Scalia is biased towards the government any more than it means Umpire X is biased towards the team with patient hitters. And it does not make their approach to law illegitimate. But the nature of the legal rules is such that one party always will benefit from that person's legal views. This is why you cannot evaluate anything solely based on outcomes.

2) Kagan also said the metaphor is right (and she believes this is what Roberts meant) in saying that judges must understand that they, like umpires, are not the most important people in the game. Policymakers (Congress and the Executive) are the more important players in the game, with judges playing the limited role of policing the constitutional boundaries of congressional and executive action and conduct.

I did not like this part of the answer, in part because it could give the metaphor new, different life. Neither courts nor umpires play a limited role. Umpires necessarily are involved in every single play--not one pitch is thrown in a baseball game that does not result in at least one pro forma call on the play. Moreover, I never read Roberts as using the analogy to say that judges should not vigorously exercise the power to police the constitutional boundaries; certainly his behavior on the Court does not indicate a belief in according great deference to the elected branches. So I hope the metaphor does not become a catchphrase for more constrained judicial review.

Plus, it's just wrong. Umpires don't "decide" the game--who wins and loses. That is done by the players who throw the ball, catch the ball, and hit the ball. So, sure, umpires are secondary to the players on the field. But judges (at least in non-jury cases) do decide the case; it is their job to determine who wins and who loses in litigation that has been brought before the court. So judges, of necessity, are a major player in litigation. As I argued in my LSA panel on the metaphor: We could have a baseball game without umpires and we would understand it to be baseball, but we could not have litigation or adjudication without judges.

3) The metaphor fails at the task for which many Senators and others (not clear if Roberts falls in this group) have put it: Making judging appear simplistic and law clearly determinate such that any judgment is unnecessary and, in fact, bad. Quoting in full:

[T]he metaphor might suggest to some people that law is a kind of robotic enterprise. That there's a kind of automatic quality to it. That it's easy. That we just sort of stand there, and we go "ball" and "strike" and everything is clear cut, and . . . there's no judgment in the process. And I do think that that's not right, and it's especially not right at the Supreme Court level, where the hardest cases go, and the cases that have been the subject of the most dispute go. . . . Judges do in many of these cases have to exercise judgment. They're not easy calls. . . . But we do know that not every case is decided 9-0 and that's not because anyone is acting in bad faith. It's because those legal judgments are ones in which reasonable people can reasonably disagree sometimes. . . . [L]aw does require a kind of judgment, a kind of wisdom.

It would have been nice if she also acknowledged that even umpires do not just go "'ball' and 'strike'" and that they exercise interpretation and judgment as well. Thus the broader point is that no decisionmaking is robotic or automatic and we should stop acting as if it ever is. Part of what always has bothered me about the metaphor is that it is based in the first instance on a misunderstanding of what umpires do.

Otherwise, this answer was spot-on in explaining why the metaphor does not work--rules always must be interpreted and judgment exercised. Stop pretending the rules are easy, mindless, or clear, obvious, and determinate. And stop acting as if a decision with which you disagree was illegitimate or based on person preferences (that accusation was a recurring theme towards any justice or decision with which a questioning Senator disagreed).

Is the metaphor gone forever? I doubt it. I expect to hear it repeated in the committee and floor debates on Kagan, as well as in the hearings on Obama's next nominee. But Kagan started to lay out a pretty good map of how to attack the analogy--certainly as much as is possible in the current (unfortunate) political context.

Posted by Howard Wasserman on July 1, 2010 at 11:54 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


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sounded to me that she thought the metaphor had a lot going for it.

Posted by: John Steele | Jul 1, 2010 12:39:38 PM

But, judges, per Carolene Products FN4, do "root" for some interests more than others, certain minorities getting closer attention by the judges, which might not be "rooting" exactly, but it isn't totally neutral either.

The analogy seems to suggest judges are totally objective when in fact they in various ways tend to have certain biases and leanings (like those with narrow or wide strike zones, or who treat rookies more strictly) that affect their judgment.

Anyways, she is not going to totally bad mouth the analogy of her future chief.

Posted by: Joe | Jul 1, 2010 6:42:19 PM

What Joe describes is certainly not rooting and I'm not sure it's not neutral between the parties. Rules have to be made operational and workable, in a way that respects and furthers the underlying values. In baseball, they lowered the strike zone because hitters could not reach the letter-high fastball. In law, this is why we have burdens and standards of proof. And this is why we have strict scrutiny--the values underlying the First Amendment or Equal Protection require government to carry a higher burden before they can make race-based distinctions or content-based distinctions of speech. If not neutral, it is not neutral in service of constitutional values.

Posted by: Howard Wasserman | Jul 1, 2010 8:52:01 PM

Like John, I took Kagan to be endorsing the analogy -- at least, to be endorsing the point that I think then-Judge Roberts was making when he offered it. If she "buried" anything, I think, it is the snarky "Boy, that John Roberts sure is simplistic and silly, thinking that judging is easy and robotic, like being an umpire" critique.

Posted by: Rick Garnettt | Jul 2, 2010 11:14:50 AM

Kagan made four points. In the first two, she endorsed the metaphor and she specifically said that Roberts was using the metaphor in the second way (i.e., one of the ways she endorsed).

Then she was critical of one usage of the metaphor. She attributed that usage unnamed “some [people],” and re-worded the metaphor to connote a “robotic” jurisprudence. So, obviously, she was attacking a straw man. Roberts never claimed his role was “robotic.” He said it was a critical but limited rule.

More interesting was her last comment, “it’s law all the way down.” She said it more than once during her answers. What does that mean? I would think that the people who jumped all over Roberts and who defended Sonia Sotomayor’s comment about judicial policy-making would be at least curious as to what Kagan meant. She didn’t mean a Razian exclusivism, did she? Or Kelsen’s pure theory? I can’t imagine that she meant either of those.

So was it just a piece of rhetoric to keep the GOP off her back or did she mean something significant?

Posted by: John Steele | Jul 2, 2010 1:02:53 PM

John breaks the statement out better than I did in my original post. She defends the analogy in the first two, then criticizes it in the latter two. Let me respond to each (some of which I thought was inherent in the initial post, but worth repeating:

1) The metaphor is worthless for this because we don't need it. Yeah, a judge should not be predisposed to find for one party and should not "root" for one party. The analogy does not really add anything.

2) This is just wrong. The umpire does not play a limited role because he has to do something on every play. But the judge really does not play a limited role. The judge must decide the cases brought before her, so the notion of a limited role is incorrect. Anyway, I was troubled by this part of her answer, to the extent she is suggesting it should mean limited judicial review.

3) No, I don't believe Roberts meant this (and if he did, he could not have meant it seriously). But everyone else has, particularly conservatives and Republicans in the Senate.

4) Rhetoric. As I said, she went about as far as one could in this political context.

Posted by: Howard Wasserman | Jul 2, 2010 1:41:19 PM


Thanks. I won't belabor my previous comments about what I like about the metaphor, as that discussion seems exhausted for now.

But on the "law all the way down" comment, I really do believe she meant something significant. I could be wrong. I suppose her comment could be consistent with Dworkin's notions of objective answers for unsettled issues and "fit" with existing law. Maybe it was just rhetoric.

Posted by: John Steele | Jul 2, 2010 3:03:44 PM

My use of "root" was loose and I said as much. Note that strikes zones were changed but still they are by rule set parameters, not "be more strict when certain batters are at the plate."

There are "not neutral in service of constitutional values" -- exactly. That's my basic point. The judges are not "neutral" for all comers; that is the point of FN4 -- there are times when they should take special care, which is the not the rulebook principle for strikes and balls.

Yes, you can say they are being "neutral" in the sense that given certain groups are disadvantaged, equality requires you don't treat them exactly the same. So, a government funded attorney is not "unequal" since someone else has to pay. But, even there, that doesn't apply to fundamental rights -- they are not treated the same way as mere economic regulations. Why? Because the Constitution is not totally neutral. Certain liberties deserve special protections.

And, therefore, judges do in a fashion "root" more for certain litigants. Free speech litigants get more special treatment than those who wish to legalize drugs.

Posted by: Joe | Jul 5, 2010 11:41:36 AM


That the rules are not neutral (which we agree upon, both as to the constitution and maybe even as to the strike zone) is not the same as the judge not being neutral.


I suppose we could read "law all the way down" to mean that "law" includes whatever gap-filling and "judging" that judges do in practice, making disagreements (and, silently, different approaches) natural and not illegitimate. She could not draw the connection or make the argument too explicitly, but she made the point in something of code, the most explicit she could be without attracting too much attention to the point.

Posted by: Howard Wasserman | Jul 6, 2010 6:17:06 AM

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