Of umpires and the heart at Sotomayor hearing

July 13, 2009

Senators trying to make points turned to baseball umpires, football, and matters of the heart, at Sonia Sotomayor’s confirmation hearing for the U.S. Supreme Court.

They batted around the words of Chief Justice John Roberts from his own confirmation hearing four years ago when he told the same committee: “Judges are like umpires. Umpires don’t make the rules; they apply them.” (For more umpire analogy discussion see The New York Times).

BASEBALL/Democrats sought to portray Sotomayor as a better court umpire than Roberts, who was a nominee of  Republican President George W. Bush.

Senator Charles Schumer said there was debate about whether Roberts has “actually called pitches as they come or whether he tried to change the rules.”

But Sotomayor, Schumer said, ”has simply called balls and strikes for 17 years far more closely than Chief Justice Roberts has during his four years on the Supreme Court.”

Senator Richard Durbin used the baseball analogy to strike at conservatives. ”We have observed, unfortunately, that it’s a little hard to see home plate from right field.”

The only ones who were called “OUT” at the hearing were a couple of anti-abortion rights yellers who were ejected from the room.

Republican Senator John Cornyn chose football: “A lower court judge is like the quarterback who executes the plays, not the coach that calls them. That means many of your cases don’t really tell us that much about your judicial philosophy or what it would be in action if confirmed to the United States Supreme Court.”

Other Republicans chose not to put a spin on the ball but to talk about the heart.

Senator Lindsey Graham said: “I have no way of knowing what is in your heart any more than you have knowing what’s in my heart. So that to me is an absurd, dangerous standard.”

The only thing missing was the apple pie…

Photo credit: Reuters/Brian Snyder (Bat boy holds baseballs for home plate umpire)

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The truth is both sides are prevaricating and know it. Judges in the English legal system and its American offshoot have been making law and setting policy since the Middle Ages because at the start there weren’t any laws.

Over time, these judicial decisions were largely adopted as the code of the land because they usually made sense. In fact, the Colonies expressly adopted the judge-made laws in England when they became states.

Courts apply a law to the facts presented to them. However, no system of laws can be effective, clear and complete. The more specific laws are, the less effective they are at handling the myriad situations to which they may apply, so laws need some ambiguity. Also, laws are sometimes purposely ambiguous because of legislative compromises or when legislators punt and defer resolution to a future date when the laws are applied to actual facts and we can see how well they work in real life.

Thus, our system of laws, starting with the Constitution, and including every piece of legislation since then, carry some amount of ambiguity. When the law and the facts are clear, there is little need for courts.

Courts get cases where the application of the law in a specific situation is unclear. The parties disagree about what the law requires, but they can’t go to the legislature and get an answer. Think how long it takes Congress to get things done now and imagine them also having to decide individual situations!

What the courts do in these cases is interpret the law. Under all theories of interpretation, from “strict construction” to a “living Constitution,” the courts are trying to figure out how the law works in a specific situation for which the law has no clear cut answer. Since we want all future cases with the same or similar facts to be decided the same way, the court applied solution/interpretation isn’t limited to the parties before it. These judicial decisions have the force of law. It is the policy from now on in that court’s jurisdiction.

This is making law; it is not judicial activism. When the law the court declares is about small stuff or in areas where there is no strong disagreement, these instances of “making law” go unnoticed – all the time.

When a law conflicts with the Constitution, the law is invalid. The Constitution is a document with very broad language and many ambiguities; so, the courts must sometimes interpret the Constitution to decide whether the particular legislation conflicts with it. Whenever legislation is struck down, somebody is upset.

Sometimes, courts are faced with laws that are not clear, or in conflict with each other, in areas that affect a lot of people, or that touch upon divisive issues. The courts must still resolve the controversies before them and in doing so, they make law.

Conservative and liberal policy makers know this. They know courts make law all the time. Moreover, the way our courts make law is not an affront to our democracy because the court’s law-making never ties the hands of the legislature. The legislature can always modify the law at issue and clarify how the law is to be applied in those situations; although, this is a bit harder to do when it is the Constitution that needs modification.

In fact, there are many instances in which courts alert the legislature to the need for clarification, or even beg for guidance. Judges by and large don’t like to make law or policy when a lot of people are affected or in areas where there is political disagreement. This gets them negative press coverage and sometimes death threats.

Usually, politicians only care about the process a court used when they don’t like the result. They accept the court’s law making in other areas, but it isn’t very impressive for politicians to tell their constituents: “This court did not use the right process for interpreting this law.”

Instead, politicians who disagree with a court’s interpretation call it an “activist” court. This is harming how the populace understands the role of the courts and it is undermining respect for the authority of the third branch of our government.

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