Dear Senators, Please Leave the Baseball Analogy on the Field!

For those of you who know me, know that I am a baseball fanatic.  I believe it is the best sport to watch, especially come playoff time.  But if I have to hear one more Senator discuss whether a nominee is a good umpire, impartially calling balls and strikes in our legal system, I might have to throw a baseball through my television.  [Update:  according to SCOTUSblog.com, no fewer than nine Senators made reference to umpire or umpires during the first day of hearings on the nomination of Judge Sonia Sotomayor for a seat on the Supreme Court]

Back in 2005, then Supreme Court nominee John Roberts stated during his confirmation hearing:

Judges are like umpires.  Umpires don’t make the rules; they apply them.  The role of an umpire and a judge is critical.  They make sure everybody plays by the rules. . . . I have no agenda, but I do have a commitment.  If I am confirmed, I will confront every case with an open mind.  I will fully and fairly analyze the legal arguments that are presented.  I will be open to the considered views of my colleagues on the bench.  And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability.  And I will remember that it’s my job to call balls and strikes and not to pitch or bat.

While this was a simple analogy cooked up, I am sure, by some Republican PR or advertising flak, it does a disservice to the public in educating them on how hard it is to make decisions as a Supreme Court Justice.  Justice Roberts would have you believe that being a judge is the simplest of tasks:  applying clear rules to clear facts and coming to a conclusion.  Reality could not be further from this simple analogy.

First, the rules of baseball are a model of clarity as compared to the text of the Constitution or federal statutory code.  For example, take the subject of Justice Roberts’ analogy:  calling balls and strikes.  According to Major League Baseball Rule 2.00:

The Strike Zone is defined as that area over homeplate the upper limit of which is a horizontal line at the midpoint between the top of the shoulders and the top of the uniform pants, and the lower level is a line at the hollow beneath the kneecap. The Strike Zone shall be determined from the batter’s stance as the batter is prepared to swing at a pitched ball.

While this rule is clear and not open to interpretation, anyone who has ever played or watched baseball knows that each umpire has a slightly different strike zone.   Some umpires call more high strikes than low ones; some have a wider strike zone than others. Even MLB umpire John Hirschbeck has

acknowledged something pitchers and hitters have long known: each umpire calls balls and strikes a little bit differently.  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[.]  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.

Unlike the rules of baseball, the Constitution is hardly clear enough to simply apply it to all situations and easily come to a conclusion.  For instance, the First Amendment provides:  “Congress shall make no law . . . abridging the freedom of speech[.]”  What does this mean?  Does it mean that while Congress cannot abridge the freedom of speech, a state or locality can?  Does it mean that the Amendment only protects verbal speech, but not written speech?  What about television or the internet?  Does it protect commercial speech as much as it does political speech?  Does it protect obscenity and pornography?  None of these questions are answered by reading the Constitution?  Justices, the federal and state governments, citizens and corporations have been fighting it out since the dawn of our republic.

But what makes constitutional interpretation so much harder than being an umpire is that as a society, we cannot even agree on how to interpret the Constitution.  Should we simply apply the “meaning” of the text when we can ascertain it?  What meaning:  intention of the drafters?  The meaning the public would have attached to it when it was drafted?  How about what a modern society would interpret it to mean?  Can that meaning change over time or is static, fixed at the time of adoption?  Because we cannot even agree on these basic ground rules, it is either naïve or disingenuous to say that judges are and should simply be umpires calling balls and strikes.  I urge all Senators to stop using this analogy and concentrate on some of the questions posed here that have been bedeviling generations of Americans since the founding.

WHY SHOULD HEALTH CARE BE EXEMPTED FROM COST BENEFIT ANALYSIS

Since President Obama proposed his stimulus, conservatives have been shrieking at the top of their lungs that President Obama is seeking to ration health care. There primary piece of evidence is inclusion of funding ($700mm) for what is known as Comparative Effectiveness Research (“CER”). What CER seeks to do is study the costs and benefits of certain medical treatments, procedures or drugs. For example, it would study whether physical therapy is more effective than shoulder surgery for healing an ailing shoulder. What people like Betsy McCaughey, author of the Bloomberg Op-Ed cited above, argue is that this is will lead to the Government deciding which treatments your doctor will be able to prescribe, and not you and your doctor. For example, if the Government believes that therapy is more cost effective for a certain amount of benefits as compared to surgery, you will not be able to choose surgery. In the end, according to Ms. McCaughey, the Government will simply ration health care as it sees fit. As will come as no surprise, I find many problems with the position advocated by these conservatives.

Let the Speculation Begin: Justice Souter is Retiring at the End of the Term

Pete Williams of MSNBC News is reporting that Justice David Souter will retire at the end of the term.  If President Obama does not select a Hispanic (and there will be a lot of pressure to do so), my two “dark” horse picks for the seat are Professor Pam Karlan of Stanford Law School and if he picks a white male, Seth Waxman, former Solicitor General, now a partner at WilmerHale.

I make these “crass” political statements about selecting people based on race and sex, not because I think it is a good criteria for selecting Justices, but, rather, because I live in the real world and know every news story between now and when Obama selects someone will focus on women and Hispanics.

Update: I chose not to put any sitting judges on my list of candidates, because Pres. Obama indicated that it was important to have non-judges on the Court.  If he were to put a sitting judge on the Court, my money is on Judge Diane Wood of the 7th Circuit in Chicago.

Update #2: It’s official, Justice David Souter will retire at the end of the term (seemingly regardless of whether a replacement has been confirmed).  Here are President Obama’s remarks to the WH press corp regarding the retirement.