Inside Baseball: Another Foul Ball

A few days ago I argued, and even demonstrated, that it seems to be impossible to avoid sports metaphors in discussing the Miers nomination (“Bush, At Best, Bunts“).

Now comes Robert Schwartz, a lawyer and occasional baseball umpire, to provide even more evidence of that proposition in an OpEd, “Like They See ‘Em,” in today’s New York Times. He regards Chief Justice Roberts’s comment (and all the support of his comment from the Republican bench) that judges are like umpires as a slow pitch, which he attempts to hit out of the park.

Schwartz’s point, which he makes very well, is that umpires don’t simply apply the rules; they, like judges, have to interpret.

… the rules of baseball, like most laws, can be interpreted in different ways. Even though the rule book is clear in its definition of a strike, some umpires presume a pitch to be a strike unless there is a reason to call it a ball; others presume the pitch to be a ball unless they deem it to be a strike; and some appear to have no regular approach at all to making ball-strike decisions.

The first group are considered “pitchers’ umpires.” The second are praised by batters. The third group is often criticized for “not having a strike zone,” because they, like, say, Justice Sandra Day O’Connor, appear to take a case-by-case approach to their adjudications. Nevertheless, they have a methodology; what coaches and players want to know is what kind of umpire they have behind the plate that day.

Umpires often have no choice but to use discretion. They cannot invoke the infield fly rule unless an infielder can catch the ball “with ordinary effort.” And they must call a balk on a pitcher trying to pick off a runner on first if he does not “step directly” towards the base. Umpires spend years learning how to interpret common legislative terms like “ordinary” and “directly.”

I think Schwartz connects very well with these points, and gets solid hits out them. Alas, on his most important pitch, the one where he virtually points, Babe-like, at the right field fence and announces that he intends to hit the next one, the final pitch, out of the park, all hits is a clear foul ball:

The myth of the neutral umpire is no more tenable than that of the neutral justice.

After a promising start Schwartz ran out of steam at the end of the game. He completely misunderstands what “neutrality” is all about. True, a “pitcher’s umpire” or a “batter’s umpire” may bring an interpretive style to the game, but those styles are neutral in the only way that matters: they apply equally to pitchers or batters from both teams. When, for example, Sen. Jeff Sessions (R, Ala.) says — and is ridiculed by Schwartz for saying — “What our legal system demands is a fair and unbiased umpire, one who calls the game according to the existing rules,” what he clearly means is a judge who doesn’t always support the home team.

UPDATE

Professor Bainbridge on the baseball analogy.

Say What? (4)

  1. Chetly Zarko October 6, 2005 at 6:03 pm | | Reply

    Here in Detroit, we understand this all too well. In basketball or hockey, for example, where Detroit teams have recently excelled, much is often said of a “bias” against defensive play styles. It turns out in both sports that referees tend to call games “tighter” (regarding personal fouls, etc.) during the regular season than in the playoffs. The bias is not that it “favors” the defense in the regular, as our opponents argument, the problem is the CHANGE in style from regular season to playoffs.

    You are right. If an ump has a wider strike-zone all the time – it is fair to everyone, neutral.

  2. Jim Miller October 6, 2005 at 7:45 pm | | Reply

    Interesting. But what do you think about NBA referees, who favor super stars quite openly? That can favor one team — it certainly helped Jordan’s Bulls, but it is also possible for it to be seen as neutral.

    (Funny story about Jordan. When he was working with the players on the Washington team, he was showing some of the guards how to hold the defender before they made a move to the basket. Despite his fame, they just laughed at him, pointing out that HE could get away with that but that they couldn’t — and they were right.)

  3. TJ Jackson October 6, 2005 at 11:16 pm | | Reply

    Hmmm the authormust have seen a great many world series in which umpires engaged in a great deal of creativity in determining strike zones. In the real world there are checks and balancesto insure umpiresdon’t err continuously and entirely without consequence. Our political and judicial systems have collapsed to the point that the judiciary is now an entirely political affair. I donot believejudges can be entirely neutral but I believe their baser instincts can be restrained if they believe there are consequnces they will have to answer or.

  4. LTEC October 6, 2005 at 11:16 pm | | Reply

    “… out of steam …”???

    I think your baseball metaphor is on the wrong track.

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