Once again, did the seven umpires know something that their two brethren did not?
A number of prominent legal experts have weighed in with us on the "balls and strikes" analogy.
Chip Pitts, A Lecturer at Stanford University Law School and president of the Bill of Rights Defense Committee, told us, "Notwithstanding the current public triumph of the 'umpire' metaphor, judging usually isn't a matter of objectively and passively applying a simple rule from a single rulebook to a specific set of facts. Judging real cases at this time of great social and technological change -- especially cases of the sort that make it to the U.S. Supreme Court, involving complex disputes over meaning, sources of legal authority, and application to facts -- cannot possibly be crammed into such a formalistic box without doing great damage to both truth and justice."
Marjorie Cohn, president of the National Lawyers Guild, told us, "Since he was confirmed to the Court, Roberts has behaved more like a radical right fielder than an umpire. He routinely favors corporations over individuals, and prosecutors over criminal defendants. Roberts is doing his best - quite effectively - to shape the Court into a reliable tool to further the right-wing agenda."
And Prof. Peter M. Shane of the Ohio State University law school said, "The ideas that Supreme Court Justices are mere umpires, or that constitutional interpretation bears any authentic resemblance to following a baseball rule book, are ludicrous."
He told us, "The right-wing has so successfully animated the public fear of 'judicial activism' that any candid admission that the act of judging involves actual judgment is regarded as politically fraught. This is especially regrettable because the GOP's only definition of judicial activism seems to be "judicial decision making at odds with the Republican Party platform."
But criticism of the baseball analogy is not limited to progressives. Bruce Fein, a Conservative civil libertarian who served in the Department of Justice under President Ronald Reagan, told us, "The umpire metaphor of the task of a Supreme Court Justice is juvenile. There is no moral or philosophical element in calling balls or strikes -- no more so than in calculating the circumference of a circle... It is ridiculous, but once one acknowledges that, what role remains for the Senate?"
Others are also questioning the role of the Senate. Shayana Kadidal of the Center for Constitutional Rights, a civil liberties advocacy group, is among them. He told us, "In many other countries, the top judges are civil service appointees who've worked their way up the ladder since their graduation from law school, and thus all have very long judicial records to examine. But beyond looking at their track records, the review process doesn't involve any questioning about judicial philosophy and beliefs. Most of it is well-known and accepted; the focus is on technical competence."
For decades, Supreme Court nominees did not appear for grilling by Senators. But that was before television. Today most agree that it is unrealistic to expect politicians to give up an opportunity to go before the cameras for headline-making political theater.
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