Dark Bilious Vapors

Here is an *interesting * take on the John Roberts and Harriet Miers nominations and the need to find out their views on Constitutional interpretation from Robert Schwartz - who is both a lawyer and executive director of the Juvenile Law Center and was a former umpire.

Click on the "more" button to read this NY Times Op-Ed piece.

Like They See 'Em

By ROBERT SCHWARTZ

HARRIET MIERS has said that, if confirmed to the Supreme Court, she intends to "strictly apply the law and the Constitution." President Bush says his nominee will "not legislate from the bench." A new survey in the American Bar Association Journal found that a majority of Americans are upset with "judicial activism." Those respondents, like the president and Ms. Miers, appear to accept the view of Chief Justice John Roberts that "judges are like umpires - umpires don't make the rules; they apply them."

In fact, judges must routinely interpret the law - just as umpires must interpret the rules of the game. This is not a sign of activism, but an inherent part of either job. What differentiates individuals is how they approach this task of interpretation.

Three decades ago I was behind the plate in a semi-pro game in which Robin Roberts, a Hall of Fame pitcher, was coaching. Early in the game, Roberts asked me why I wasn't calling strikes when his pitchers threw just below the batter's knees; he used to get those calls from National League umpires. I replied that on this I was a strict constructionist; since (at the time) the rule book defined the strike zone as beginning at the top of the knees, that's what I called.

Later in the same game, the other team's manager, who was also acting as a base coach, stopped between innings at the mound; he picked up the ball, handed it to his pitcher, gave him a word of encouragement, and continued to the dugout. Roberts came out and asked whether I was going to count that exchange as "a trip to the mound." (Managers are permitted only two such trips to the same pitcher per inning.) I decided that this wasn't a time for strict construction; surely the rule makers didn't intend to count that kind of interaction as a "trip." Again, Roberts nodded at my explanation, and the game continued.

As a former big-leaguer, Roberts understood that 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."

So within a certain range, umpires have leeway. But baseball doesn't tolerate an umpire whose judgment is on the fringe. Indeed, the umpire who is overly technical in calling balks, or who sees balks when none occur, is too far outside the mainstream to last.

Earlier this year, the Supreme Court had to decide whether the juvenile death penalty was "cruel and unusual punishment." The majority and dissents used different methods to decide what those words mean. Both had to justify their methods of interpretation; neither could rely solely on the text of the Eighth Amendment.

This nuance, however, seems to be lost on many politicians. "What our legal system demands," said Senator Jeff Sessions of Alabama, "is a fair and unbiased umpire, one who calls the game according to the existing rules." Well, yes, but the best umpires are honest enough to acknowledge that they have an approach to umpiring. The myth of the neutral umpire is no more tenable than that of the neutral justice. When the Senate considers Harriet Miers, the philosophy behind her decision-making is what matters, especially since she doesn't have a minor-league record.

Karen on 10.06.05 @ 07:02 AM CST