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Tuesday, July 08, 2008

Umpires, Judges, and Interpretation

Like many commentators, I thought John Roberts' suggestion at his 2005 Senate confirmation hearing that judges are simply baseball umpires--calling balls and strikes and not making any value or policy judgments and exercising no discretion-was, at best, fatuous. It was, at worst, demeaning to judges and judging, which is a far more difficult task, demanding interpretation, discretion, and value judgment, than Roberts would acknowledge. And, it turns out, Roberts' comments may have been demeaning to umpires, who must do a lot more than simply call balls and strikes. Consider the following examples.

In June, in a Class-A minor league game, a switch-hitter faced an ambidextrous pitcher. When the batter stepped in to hit right-handed, the pitcher set up to pitch right-handed. The batter then switched to bat lefty, so the pitcher changed hands again. The batter switched one more time and so did the pitcher (watch the video--the fun starts at about the 2-minute mark). Finally, the umpires gathered to figure something out.There are rules in place for switch hitters and when they can switch sides during a single at-bat, usually in response to a pitching change. And there are rules for changing pitchers during an at-bat. But nothing that specifically covered one pitcher able to change hands multiple times. The umpires conferred and decided that both batter and pitcher were allowed one switch per at-bat after the first pitch, but that the hitter had to declare a side first.

To resolve this, the umpires had to do what we think of as judging. They applied a set of generally applicable rules to a unique, probably-unthought-of factual scenario. They necessarily made a value/policy judgment in giving the pitcher an advantage by making the batter declare a side first--which goes against the de facto usual situation of the pitcher declaring first (because typically everyone knows which hand he throws with). Why make hitter-first the default rule--some value or policy judgment must have been in play. By the way, the Professional Baseball Umpire Corporation last week announced specific rules for the situation, allowing one change for each side per at-bat, but requiring the pitcher to make the first move.

This past weekend at Yankee Stadium, a batter hit a long drive that the left-fielder had in his glove momentarily, then lost when he crashed into the fence; the ball popped in the air and landed on top of the fence, where it bounced a few times and came to rest (remember the putt at the end of Caddyshack?), before finally falling back onto the field, by which time the batter was standing on third.

Calvin Massey wonders what would have happened if the ball had remained atop the wall. The ball did not go "into the stands" or "over the fence," although it was not on the playing field. The ball sort of left the playing field, at least for the time it was atop the fence. Had it gotten there "on the fly," when it hit the fielder's glove first? Massey wonders how a Justice Thomas or Scalia would view the situation, given their interpretive approaches. But the important broader point is that we recognize the need for interpretation of text, intent, and context is indeed required even in baseball. The rules clearly account for what happens a) when ball goes over the wall (home run), b) where a ball hits the wall and comes back into play (no home run), and c) where the ball goes under or through the wall (ground-rule double). The rules do not mention a ball stopping atop the wall. Figuring out that situation requires the umpire to engage in an act of judging--what is this situation most like and how does it match the words of the rules? By the way, the umps said it remained a live ball and the batter had a triple. And I think that would have been the correct call even if the ball had remained atop the wall.

There is nothing rote or automatic about what umpires do. Nor is there anything rote or automatic about what judges do. And we do a public and political disservice when we pretend otherwise, especially when used as a dodge to avoid questions about the jurisprudential theory of a Supreme Court nominee.

Posted by Howard Wasserman on July 8, 2008 at 07:45 AM in Article Spotlight, Culture, Current Affairs, Legal Theory | Permalink

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Comments

The "judge as umpire" analogy need not be simple-minded. See, for instance, the use of this analogy by Gerald F. Gaus in Justificatory Liberalism: An Essay on Epistemology and Political Theory (New York: Oxford University Press, 1996).

Posted by: Patrick S. O'Donnell | Jul 8, 2008 1:34:27 PM

Interesting how the announcers show their stupidity repeatedly. They're not familiar with the rule about the batter changing sides during an at-bat, nor are they familiar with the major league pitchers who have been ambidextrous. Greg Harris pitched as a lefty and righty during a game in the 90s, so we're not talking ancient history here. He didn't face a switch hitter, but having an ambidextrous pitcher is not unprecedented, as these announcers indicate.

Hmmm... the media covering the matter not being that familiar with the specificis? Kinda like much (certainly not all) coverage of the law in the media.

Posted by: David S. Cohen | Jul 8, 2008 10:45:12 AM

There is no rule for the interpretation of a rule.

Posted by: Jeff Lipshaw | Jul 8, 2008 9:53:59 AM

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