by Andrew Zajac
One of the more curious - and flawed - lines of attack by Republicans against the nomination of Judge Sonia Sotomayor to the Supreme Court is to raise doubts about whether she would be a fair "umpire" of legal disputes.
Jurist-as-umpire is an attractive metaphor, conjuring up Norman Rockwellesque imagery of a somber, unassailably honest arbiter calling balls and strikes without fear or favor.
But examine it carefully and that image actually undercuts the message Republicans are trying to convey.
In a recent AP story, Alabama Sen. Jeff Sessions, the ranking Republican on the Senate Judiciary Committee, wondered if she "sees her role as something more than that of an impartial umpire."
'Republicans have seized on speeches in which Sotomayor said she hoped a wise woman or Latina "with the richness of her experiences" would make better, more compassionate decisions in court than a white man,' the AP reported.
'"Do I want a judge that allows his or her social, political or religious views to impact the outcome, or do I want a judge that objectively applies the law to the facts?"' Sessions asked in the story.
If Sessions is looking for Sotomayor to handle cases like an umpire, the answer may be closer to the former than the latter.
For many years, umpires in the American League were widely believed to call balls and strikes differently than their National League counterparts.
This probably had to do with the American League umps' use of a bulky, rigid chest protector which made it harder to squat as low as NL umps, who wore smaller, flexible chest protectors, similar to a catcher's, inside their jackets.
The AL eventually got rid of the outside chest protector and in 2000, Major League Baseball merged umpiring staffs, which led to this observation from Hall of Famer Tony Gwynn in an AP story from April of that year:
"It will be difficult at first to adjust," Gwynn said. "There's a big difference between what the NL and AL umpires call. I'm not going into specifics, but there's a big difference," Gwynn said.
For years, people have talked about varying strike zones - the NL umps supposedly called a lower strike,' the AP reported.
So for the first 124 or so years of the major leagues, petitioners, er, batters, received at least two different kinds of justice depending on which league they played in.
In the same story, umpire John Hirschbeck downplayed the difference in strike-calling between the two leagues, but acknowledged something pitchers and hitters have long known: each umpire calls balls and strikes a little bit differently.
Said Hirschbeck:
"Some guys have a tighter strike zone, but if the ball is over the plate at the right height, that's a strike no matter who you are," Hirschbeck said. "Up and down, the same thing. Some guys are a little tighter. They want that ball, in their minds, to be right on the plate. 'Other guys say that if it nicks the corner, that's good enough for me..."
That means that even with an staff of umpires blended from both leagues, individual differences would remain.
Even if an umpire is "impartial", to use Sessions' word, a subtle collection of factors in his background including where he went to umpiring school, where he began his career and even his temperament, could lead him to call a game differently than his colleagues. Impartially, but differently.
Arguably this is the case with Chief Justice John Roberts, who compared himself to an umpire during his own confirmation hearings four years ago.
As pointed out in Jeffrey Toobin's recent New Yorker profile of Roberts, "in every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff."
This, argues Toobin, "reflects a view that the Court should almost always defer to the existing power relationships in society."
Is that because Roberts was reading the law more precisely, more 'impartially', than other justices who reached different conclusions?
Or can it be that Roberts' upbringing in a prosperous, insular Indiana company town, and his service as a young aide in a conservative Reagan Justice Department made him more comfortable with the status quo, more leery of change than someone from a different background?
'Umpire' Sotomayor had a different set of formative experiences, including growing up as a minority in modest circumstances and beginning her working life as a prosecutor.
Would that influence her thinking on affirmative action and criminal law?
Maybe. But from the standpoint of her suitability to serve on the court why should that matter any more than Roberts' country club background might curb his appetite for questioning social and legal orthodoxy?
Comments
As much as elected Republicans may try to hide their bigoted attacks on Sotomayor by letting other Wingnuts fling the mud (Gingrich, Limbaugh, Pat Buchanan, Lou Dobbs etc), that distinction isn't going to be made by Latinos watching on the sidelines. They know who pulls the strings in the modern GOP, and the longer they drag this out, and the nastier they behave, the more they'll lose a demographic that is projected to be 30 percent of the American population in 2050.
Without young voters or Latinos, the GOP can't win. They've done a fantastic job of alienating the former with their opposition to equality, and they're about to finish off the latter courtesy of the Sotomayor confirmation hearings.
Considering that the Census Bureau expects the nation to be only 46 percent non-Hispanic, single-race white in 2050, the GOP's continued shoddy treatment of people who don't look like "President" Newt or Boss Limbaugh is only solidifying their journey toward fringe status.
Posted by: ComeAsYouAre | June 15, 2009 3:37 PM
Is it just me or are the only people against Sotomayor a bunch of fat, old, pasty white guys? I don't see the Republican women coming out against her...Barbara and Laura Bush are happy with her choice for the Supremes. I think this is nothing more than a pi**ing contest on the playground.
Posted by: lochnessmonster | June 15, 2009 5:16 PM
Zajac, I'm very impressed with your analysis of umpires in the AL v. NL, but I think the point of the umpire analogy is impartiality, as opposed to claiming they are all the same. E.g., they have no stake in the matter and are not favoring one side over the other. Umpires or judges obviously have differences in backgrounds, biases, etc., but especially with the case of judges, the goal should be to set aside your personal feelings when deciding a case, not embrace them. Maybe Sotomayor can do that. I hope so.
Posted by: Herbie H. | June 15, 2009 5:48 PM
It always seems strange to me that the party that loses the presidency begins immediately to oppose jurist nominations by the president, no matter what the judicial background is. Isn't it strange that republicans have forgotten that Obama won by 10 million votes, and won the right to name the judges for 4 years, just like Bush had the right for 8 years in two squeakers of elections.For heaven's sakes, lets get on with the debate, the dems have the 60 votes necessary to get past the filbuster. And the next time the reps are in the presidency, if ever, then let the dems keep their mouths shut and get on with the appointments. Not all Americans are not stupid, as some politicians seem to think. They know when they voted for Obama they were giving him the right to appoint the judges.
Posted by: fred kellly grant | June 15, 2009 10:13 PM
Jeffrey Toobin is a twit. In less than fifteen minutes of casual research, I was able to find five cases, many of them very important, in which Justice Roberts sided with the defendant or the condemned against state and federal governments. They are:
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Davis v. Washington, 547 U.S. 813 (2006).
Cunningham v. California, 549 U.S. 270 (2007).
Snyder v. Louisiana, 552 U.S. ___ (2008).
United States v. Hayes, 555 U.S. ___ (2009).
Harbison v. Bell, 556 U.S. ___ (2009).
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The first three are extremely important cases that favor the rights of defendants in criminal trials. In Hayes, Roberts (joined by Scalia) dissented in favor of the defendant and petitioner’s interpretation of a federal criminal law. Roberts filed a concurring opinion Harbison, in which the Court held that federal law authorized the appointment of counsel for indigent, condemned to death, in state clemency proceedings. If I can find that many cases in fifteen minutes, I am sure I have not found all of the cases that Roberts signed or authored that contradict Mr. Toobin’s stupid assertion.
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So, Mr. Zajac, now that Toobin’s stereotyped view of Justice Roberts has turned out to be false, what say you about the analysis of the rest of the article? Hmm?
Posted by: John W. | June 16, 2009 4:56 AM
I want the GOPer base to lap it all up with their hatred of minorities here. The GOP leadership playing to what's left of the GOPer base will only alienate swing voters and pound a few more nails into the GOP's Hispanic coffin. Unless there's a video of her taking a bribe out there, this nomination will easily sail through, and any attempts to bloody Sotamayor's nose will only rebound to the GOP's detriment for some time to come.
While I'm happy with what I see of her legally, I'm ecstatic about the politics of this choice.
Posted by: bubba Porter | June 16, 2009 5:45 AM
And in one minute of research I found that John W is outright lying about the first case he names.
In Davis Vs, Washington Justice Roberts did not in any way side with the defendant against the state. In Davis, the majority decision, written by Scalia, which Roberts concurred in, rejected the defendant's (Davis) claim that if the 911 call of the victim of the crime was to be used as evidence in the trial, that the victim should be open to cross examination. The majority of the justices, including Justice Roberts, said that the 911 call was not "testimonial".
I don't know how John W can even begin to claim that this is a "case that favor the rights of defendants in criminal trials.". It clearly is not. I don't know if he is a "twit" like Toobin, biut I do know John W is either completely and utterly misinformed, or he is just outright lying.
http://www.oyez.org/cases/2000-2009/2005/2005_05_5224
Posted by: Lou | June 16, 2009 9:27 AM
I see the DNC, in the person of Andrew Zajac and Jeff Toobin, are once again on the warpath with Repub-hate.
Luckily, this editorial is too silly to take seriously.
Posted by: What happened to Hope and Change? | June 16, 2009 9:31 AM
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Posted by: Lou | June 16, 2009 9:27 AM
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My mistake, Lou. I confused Davis v. Washington with Crawford v. Washington, 541 U.S. 36 (2004), both of which dealt with the same issue. Although the defendant in Davis v. Washington didn’t win, the rule of Crawford v. Washington, which the Court applied in the Davis case, does, in fact, help criminal defendants more than the prior rules dealing with the Confrontation Clause.
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And, of course, being the thorough person you always are, you also read the other four cases I cited, didn’t you? And, yes, indeed, you found that in each of the other four cases, Justice Roberts voted with the defendant against the state. I only needed one such case to prove my point about Toobin. Toobin said that “in every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.” Not only is that demonstrably false, it is not even close to being true. And you can’t dispute this.
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In the meantime, I have found another five cases in which Justice Roberts sided with the defendant or the petitioner against the government. That should be enough to fill the place of the bad call I made with Davis v. Washington. Do you want to see them?
Posted by: John W. | June 16, 2009 5:13 PM
No John, I took your advice , and when I found your error, I disregarded everything else you said, just as you suggested we all should question Toobins' analysis because of his error. I only needed one case to prove my point that you didn't know what you were talking about. What you said was demonstrably false, not even close to being true, so I just lumped you in with Toobin. I'm sure you agree that there is no more reason for me to credit anything else you said than there is for you to credit anything else Toobin said, right?
Posted by: Lou | June 17, 2009 6:50 AM
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Posted by: Lou | June 17, 2009 6:50 AM
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That’s nonsense. You are not even thinking anymore. You are engaging in polemics, and bad polemics at that.
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There is a difference in content and structure between Toobin’s argument and mine. He said Roberts sided with “the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff” in EVERY major case since he became CJ. There could be NO case, according to Toobin, in which Roberts sided with the defendant, condemned, the legislative branch or an individual defendant. Thus, if any ONE of the cases I cited is (1) a major case; (2) in which Justice Roberts sided with the defendant, the condemned, the legislative branch over the executive, or an individual litigant over big business, then Toobin’s argument is invalid.
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I cited five cases that I claimed proved him wrong. I was mistaken about the first for the reasons already given. However, to prove my point false, one has to demonstrate that NONE of the cases I cited undermine Toobin’s argument. The remaining four cases, along with a number of others I have found in the meantime, prove my point. They are not mistakes. That can be verified in the same manner (and on the same web site) as you did with the first. This is why there is reason to credit what I have to say, and more reason to credit my argument than Toobin’s. If you choose to ignore the rest of the cases, then you are simply working from invincible ignorance. Suit yourself. The first case was admittedly a mistake.
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And, FYI, the other cases I have found that prove Toobin wrong are: Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006); Jones v. Flowers, 547 U.S. 220 (2006); Cone v. Bell, 556 U. S. ____ (2009) (concurring opinion); Munaf v. Geren, 553 U. S. ____ (2008); and Nken v. Holder, 556 U.S. ___ (2008).
Posted by: John W. | June 17, 2009 12:31 PM
Gee, how could I have ever said that John W thinks he's infallible? Even when he gets the facts dead wrong, he can't understand why anyone wouldn't agree that he is totally credible in every way.
Of course, when John W cherry picks one fact out of a much more complex argument, and disproves it(because surely no one could disgaree with John W's determination of what constitutes a "major" case. The world bows to John W's flawless judgement on such matters.), every other portion of that argunment is to be discredited. When a plebian like Toobin makes an error, all other facts and arguments he makes are called into question. Not so with the great John W. John W is of such stature in his own mind that when he makes a mistake everyone is to ignore that error and accept that everything else he says is TRUTH. His credibility is simply beyond question in his opinion. His arguments are always credible, even with backed up with erroneous facts. There are simply different rules for one as august as John W there are for a mere nobody like Toobin.
Of course, I jest, a bit. Sometimes the air needs to be let out of the balloon of your ego a bit. A little humility would go along way for you there John. I tripped you up on your facts, just as you did Toobin. Irony is a beautiful thing sometimes. Have a nice day.
Posted by: Lou | June 17, 2009 2:22 PM
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Posted by: Lou | June 17, 2009 2:22 PM
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I guess you just want to be ignorant. No, not just ignorant: stupid. And that’s fine.
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I admitted I made a mistake in citing Davis v. Washington. That was an admission on my part that I am not fallible. I am not asking, nor have I ever asked, anyone to accept what I say as the truth, sight unseen. I give case citations so one can see for themselves, and to challenge me when I am wrong. If you insist on believing that I think I am infallible in light of my own mea culpa, then you are operating in the arena of invincible ignorance.
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Ask any criminal defense attorney you know whether Cunningham v. California, 549 U.S. 270 (2007) or Snyder v. Louisiana, 552 U.S. ___ (2008) aren’t “major” cases. Both have generated a substantial amount of litigation, and have resulted in reversal of many judgments.
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BTW - Toobin didn’t just make an error. He could not legitimately assert anything he said about Justice Roberts unless there were NO major cases in which Roberts sided with the defendant, the condemned, the legislative branch against the executive, or the individual litigant. As you can see for yourself, counting out my one admitted error, numerous such cases exist. That’s not a minor error. His argument was entirely erroneous. But I can see that you are having too much smug fun to take that into consideration. Yeah, have a happy.
Posted by: John W. | June 17, 2009 3:10 PM
"That was an admission on my part that I am not fallible."
Ah, see, you admit that you are infallible!
fallible
Adjective
1. (of a person) liable to make mistakes
2. capable of error: our all-too-fallible economic indicators [Latin fallere to deceive]
It's a priviledge to converse with one who is incapable of error like you! I
Posted by: Lou | June 17, 2009 4:01 PM
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Posted by: Lou | June 17, 2009 4:01 PM
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I meant to say that I am not infallible. You should have known this from the context. Why else would I have called it a mea culpa? So, I made another mistake. In which case this is yet another admission that I am fallible.
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Get off your self righteous horse.
Posted by: John W. | June 17, 2009 5:20 PM
John, you need to learn to laugh at yourself a bit and not take yourself soooo seriously. I think you'll find that you'll be a happier person if you do.
Posted by: Lou | June 18, 2009 7:30 AM