X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Supreme Court nominee Samuel Alito Jr. is going to face some tough questions when he begins testifying this week before the Senate Judiciary Committee. Eventually, though, someone is bound to lighten the mood with a baseball reference. It might be friendly (“Judge Alito, let me toss you a softball”) or congratulatory (“Judge, that answer was a home run”) or even snarky (“I think that Senator So-and-So is throwing you a curve”), but sooner or later, there is going to be a baseball analogy. After all, Chief Justice John Roberts Jr. based his confirmation strategy on an extended baseball simile — “Judges are like umpires” — and it worked pretty well for him.
Click above for more coverage on the Alito Nomination

Baseball analogies may not be appreciated everywhere, but they will be wildly popular in Chicago, where many of us are still slightly delirious over the White Sox victory in the 2005 World Series. This being Chicago, however, the championship was not without charges of, shall we say, official largess. Early in the October playoffs, the White Sox did not exactly look like a team of destiny. Although playing at home, they lost to the Los Angeles Angels in the first game of the American League Championship Series, and at one point they were in serious danger of losing the second game as well, which would have nearly crushed their chances. But they managed to win, thanks to a bitterly disputed decision by the home-plate umpire. The defining moment came with two outs in the bottom of the ninth and the score tied at 1-1. While the hometown fans fretted that the game would go into perilous extra innings, A.J. Pierzynski came to bat for the White Sox. Angels catcher Josh Paul crouched behind the plate, and umpire Doug Eddings stood behind him. Pierzynski took two quick strikes, and then he swung and missed at what appeared to be strike three. Suddenly, Pierzynski dashed to first base. Miraculously, Eddings called him safe — on the grounds that the catcher had dropped the ball, which allows the batter to take first — and the White Sox went on to win the game. Credit Pierzynski with alert base-running, but it was the umpire’s call that put the play in motion. Eddings did not merely announce balls and strikes, as Chief Justice Roberts might describe the job. Rather, the umpire made an outcome-determinative decision based on his own judgment and a highly controversial application of an arcane rule. Roberts assured the Judiciary Committee that “nobody ever went to a ballgame to see the umpire,” but Eddings sure made himself the center of attention. His questionable call was replayed from every conceivable angle as viewers across the country watched it again and again. It turns out that the umpire can be a crucial “player” after all. With that in mind, here are four observations that should be helpful to current and future Supreme Court justices. MORE THAN WORDS First, textualism only gets you so far. It is fashionable in some circles to claim that the Supreme Court should limit its role strictly to carrying out the original intent of the Framers, as though the Constitution provides a handy template for applying its sweeping principles — equal protection, due process, freedom of speech, etc. — to modern life. But a look at baseball’s rules demonstrates the futility of that approach, and Major League Baseball’s rule book is a model of specificity compared with the Constitution.

READER COMMENTS
Have a comment about this story? We want to hear from you. Your comments will be posted at the end of this story…Editor’s Note: Legal Times reserves the right to post comments that are deemed appropriate for this forum. Please include a name and location with your comments.

Rule 6.09(b) allows a batter to attempt to reach first base when the “third strike called by the umpire is not caught.” So far so good, but what happens when the umpire’s ruling is challenged on the field? Rule 9.02(c) allows a midgame appeal to the umpire who made the questionable call, who “may ask another umpire for information before making a final decision.” And there’s the rub. An umpire may ask for input from his colleagues, but the rules give him no guidance about when or how or under what circumstances — much less how much deference he should give to his colleagues’ views. Should he be more inclined to get help in the late innings of a close game? Or if it’s a pivotal play in a championship series? Or if the rule involved is seldom applied? Indeed, can an umpire query his colleagues about replays on the stadium’s Jumbotron? That would be asking for “information,” after all. Alas, baseball’s framers did not provide much interpretive guidance. Their General Instructions to Umpires are maddeningly ambiguous: “If sure you got the play correctly, do not be stampeded by players’ appeals to �ask the other man.’ If not sure, ask one of your associates. Do not carry this to extremes, be alert, and get your own plays. But remember! The first requisite is to get decisions correctly. If in doubt, don’t hesitate to consult your associate.” In other words, baseball’s framers expected the umpire to “do the right thing,” and that calls for a level of situational judgment that written rules can never supply. It’s not so much that the rulebook is a living document as that it has to be applied to real live games. WHOSE SIDE ARE YOU ON? The next point is that conflicts of interest are not mere technicalities. They can significantly influence perceptions, even when it comes to matters of justice. It was painfully obvious to Angels fans that their catcher had not dropped the ball. Yes, it did seem to roll around in his glove, but there always seemed to be some leather between the ball and the dirt. White Sox fans saw it differently, convincing themselves that the ball scraped the ground on its way into Paul’s glove. But when successive replays raised too many doubts even for them, they just shifted to another rationalization: The Angels deserved to lose because their catcher should have known enough to tag Pierzynski, just in case. Angels fans howled at the injustice of losing a game on a bad call, but to White Sox fans the outcome was entirely fair and right. The two sides will never see the play the same way because they’re simply too partisan. Everyone with an emotional stake in the outcome is too heavily influenced to be objective. And that should tell us something about the need for recusal whenever a judge (or justice) is too closely identified with one side of a case. You might believe you can put your predispositions aside, Your Honor, but how can you tell whether your very perceptions have been skewed? That brings us to the third lesson. The appearance of impartiality must be scrupulously maintained. Angels fans were furious at Eddings that night, calling him incompetent, blind, and ill prepared. But no one ever called him biased. There was simply no reason to believe that Eddings cared who won the game. If he made a mistake, it was an honest one, which makes it tolerable in the long run. But imagine the outcry if Eddings had recently gone, say, duck hunting with White Sox owner Jerry Reinsdorf. In that (purely hypothetical) scenario, would anyone believe that the ump was completely dispassionate about the game? He might try any number of familiar-sounding explanations: I was friends with Reinsdorf before he owned the team. I paid for my own airfare. The hunting wasn’t even that good. But so what? Angels fans would never get over the appearance of favoritism. And who could blame them? THE LAST DECISION-MAKER Finally, procedure really matters. When Eddings flubbed the crucial call, the Angels had nowhere to turn for relief. Only the home-plate umpire could reverse himself. Even if the other umpires disagreed, they were helpless to intercede unless Eddings requested their help. The super-slow-motion replays showed that Eddings was clearly mistaken, but he held his ground, and his discretion was unreviewable. Unfortunately, our Supreme Court justices have taken the same position regarding their recusals. Each justice decides disqualification matters alone, without referral to the full Court. If a justice makes a mistake, well, that’s the ballgame. But baseball rulings, and even recusals, are trivial compared with the more serious procedural issues in the judicial system. Will death-row inmates get better access to federal courts? Will Guant�namo Bay detainees get any access at all? Unreviewable judgments may be fine in a game, but they can be deadly in real life.


Steven Lubet is a professor of law at Northwestern University. His latest book is Murder in Tombstone: The Forgotten Trial of Wyatt Earp. This article originally appeared in The American Lawyer , an ALM publication.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.