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GOP 'umpire' blows call on Sotomayor
by Andrew Zajac
One of the more curiousand flawedlines 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 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 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 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 zonesthe NL umps supposedly called a lower strike,' the reported.
So for the first 124 or so 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?
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