The metaphor employed by Judge Roberts reminded me of the old joke about three old umpires talking over a few beers. “There’s balls and there’s strikes,” says one of them, “and I calls them as I sees ’em.” The second, older and more grizzled, disagrees. “There’s balls and there’s strikes,” he says, nodding his head, “and I calls them the way they are.” The third, even older and more grizzled yet, shakes his head and says, “There ain’t no balls or strikes until I call ’em.”
Umpires are, in one sense, impartial or disinterested. They aren’t rooting for one team to win. A good umpire will call balls and strikes the same way for each team. But their impartiality should not be mistaken for the lack of an agenda. Some umpires have a narrow strike zone, others think that a ball on the letters is a strike. Some umpires like a slow game, some like a fast one. A good umpire is consistent, and fair, and even predictable. But even a good umpire affects the game. He has to. It’s how the game is.
You know, when Schroedinger’s Cat is in the box, how it’s alive/dead, how its state is not just unknown but indeterminate? A pitch can be right down the middle of the plate, but it ain’t a strike until the umpire raises his hand. And if the umpire calls it a ball, then it was a ball. There’s no appeal.
chazak, chazak, v’nitchazek,
-Vardibidian.
well, well, and there’s an even bigger expansion of the metaphor. baseball rule change timeline.
what if the umpire decides that there’s no such thing as a strike, that it was improperly added to the rules? or that a catch after one bounce is again an out? or a walk takes 8 balls? or, more appropriately, let’s remove giving a base for HBP. that’s not lawmaking, as roberts said; that’s law-taking.
such a thing is nearly inconceivable, isn’t it? an umpire would never preside over a game in that fashion. an umpire would never deliberately reject modern gameplay expectation.
i wonder if roberts has written about baseball.
Like an umpire, SCOTUS has thrown certain players (enemy combatants) out of the game. Like a coach, SCOTUS has told New London to steal third (Kelo). Like various team owners, SCOTUS has replaced the manager without regard to popular opinion (Bush v. Gore). Like a commissioner, SCOTUS has decided that upholding certain penalties or fines depends on divining the intent of the involved players (Grokster, Ten Commandments). Like Manny, SCOTUS has a lifetime appointment. Like a favorite glove, SCOTUS is comfortable and flexible and stained with age. Like a field tarp, SCOTUS is rolled out in case of inclement weather to protect the field.
And like listening to a game on the car radio, there’s no independent way to know whether the new guy calling the game is actually telling you what he sees.
Michael, that comment was great.
that’s really funny;
yeah, roberts wants to be umpire, but the republicans are playing FANTASY baseball.
Did I mention that consistency is important in calling balls and strikes? Oh, and one more thing, Mr. Nauert—Mr. Bonds will inform you when it’s a strike.
Are you guys still on about the Supreme Court?
Thanks,
-V.
yes, because the supreme court is barry, barry important to the country.
Fox News. CNN. C-SPAN. C-SPAN 2. MSNBC. NECN. NBC. CBS. ABC. 3 public television channels. 2 public access channels. CNBC. And they can’t get together to carry these hearings in their entirety between them? The shortest hearings in memory? It’s pathetic.
But at least Candy Crowley has told us what’s wrong with the Supreme Court — there are people on it who have, at some point in the past, held or expressed an opinion that in some way relates to a case they may hear. When she goes before the Court, she wants to know that the judge has never said anything that might indicate that he would rule against her. That must be why opinions are always written to simply provide the conclusion for a particular case, and don’t include broader commentary, discussion of general principles, explanation of reasoning, or guidance for lower courts and other branches of government. And, of course, why each Justice is only allowed to rule once, and must then recuse himself from all future cases involving related issues or resign from the Court.
Please, please can’t we find her a cell next to Judy Miller’s? It’s sycophantic apologists like the two of them who are turning this nation into an infantile, belligerent, and murderous empire.
John Roberts seems like a great guest at a cocktail party, which is sufficient for me to want him to run the Court for the next 30-40 years.
Gotta run, the media might provide another sound bite soon….
While I think some of the points where he refuses to answer are actually pretty telling in context, this short video clip makes it seem like the networks aren’t skipping all that much by not covering the hearings in full.
forgive me for this. i don’t understand why a judicial candidate who refuses to answer questions can be allowed on the bench. it’s like he’s handing in a blank paper for the bar exam, isn’t it?
It certainly wouldn’t make me want to hire or promote someone. But he has nice teeth, and that’s clearly enough for some people.
The Supreme Court needs a Chief Justice with a round head. For too long, activist pointy-headed judges have tried to destroy our country. John Roberts: he has a round head. Tell your Senator to vote yes on Roberts.
The ACLU says John Roberts’ head is too spherical for America. That’s all I need to know. I’m voting yes on John Roberts.
Round heads are friendly. Round heads taste good. Round heads will make us rich. Vote yes for round heads, vote yes for John Roberts, vote yes for America.
That must be why opinions are always written to simply provide the conclusion for a particular case, and don’t include broader commentary, discussion of general principles, explanation of reasoning, or guidance for lower courts and other branches of government.
Well, there is some truth to that, but there are some exceptions too. [1]
I suppose, if one equates “activist judges” to cavaliers, then round heads are the logical preferred alternative!
it’s like he’s handing in a blank paper for the bar exam, isn’t it?
It could be worse: http://www.theonion.com/content/node/40512
Mr. Bonds will inform you when it’s a strike.
Someone should have given Mr. Bonds “honorary Senator” status last week, so he could come in and ask the hard questions, since none of the actual Senators did. Oh the lost possibilities: if only the Nationals were named the Senators, and Barry could be traded for a week (when he was on the DL, who would have cared?) so he’d, well, be an actual Senator during the confirmation hearings….
[1] Such actual guidance often appears in small footnotes like this one, usually authored by Scalia. c.f. Blakely, where a single footnote led to a complete and total uproar in in the Federal Circuit Courts in summer 2004.
I listened to a bit of the hearings yesterday, where they had random law profs and activists come in and say predictable things. There was one point where some supporter of the Judge was saying that (a) he only looked at the specifics of the case in front of him, and (2) he was spectacularly good at what Michael calls broader commentary, discussion of general principles, explanation of reasoning, or guidance for lower courts and other branches of government. This seemed to me … difficult to reconcile.
One woman (and I ought to look up her name) made an excellent case for a rotating chief-ship, so that no Justice gets to be chief for thirty years. Her point was that in addition to the things I think of the Chief as doing, the Chief is in charge of the entire administration of the Federal Judiciary, which includes things like deciding which judges get picked for special courts and committees. I know Judge Roberts can’t be much worse than Justice Rehnquist even on that, but that’s a tremendous amount of power for one lifetime appointee to have.
Thanks,
-V.
Here are some questions/thoughts. I honestly don’t intend this to be snarky even though it’ll probably sound that way. Mostly I’m just muddled.
So, say a conservative President, with a conservative-dominated Congress in session, nominates someone to be a Supreme Court Justice.
What would y’all like to see happen during the hearings?
The President presumably chose the candidate because he thought the candidate would make a good Justice, and we know that conservatives in general tend to be stronger proponents of the strict constructionist view than liberals do.
So we can guess, it seems to me, that the President feels the candidate is more likely to make decisions that conservatives will agree with than decisions that liberals agree with.
So why even ask the candidate questions? It’s not like any candidate in this context is going to say “I think we should overturn Roe v. Wade”—and it seems unlikely that any candidate Bush would nominate would say “I believe Roe v. Wade was unequivocally the right decision and I would never vote to overturn it.”
Is the point of the hearings really just so Senators can make speeches disguised as questions?
Also, and this is me being totally ignorant, not sarcastic: I honestly don’t know whether the Democrats have the power to block this nomination. Do they? Would they have to filibuster to do it? Would that be effective?
One more thing: despite what I said above about the likelihood of a President nominating a candidate they think will vote in ways consistent with the President’s ideology, I’m really curious about whether Roberts has answered any questions in private about his leanings. I think my reaction to his sidestepping would be very different depending on whether I thought he would give the same answers to Bush in private.
(Also, I’m not sure whether some of his answers are sidestepping, honesty, or code. Is the stuff about focusing on the Constitution code for “I am a strict constructionist”? I know some conservatives are taking it that way, but I honestly don’t know how to interpret it.)
Oh, sorry, one more thing: if a liberal President were nominating a Justice, would you want it to be someone who would interpret the Constitution to the best of his abilities, or someone who would vote in accordance with liberal beliefs? Or both? As y’all have noted, interpretation is not as objective a task as the whole umpire analogy is meant to make it sound, but—well, there are liberal things that I firmly believe in but that I don’t necessarily think are supported by the Constitution. If I were a Justice, would you want me to vote my conscience or my logic? (Really, you wouldn’t want me as a Justice; I sure wouldn’t.)
Addendum: article about Roberts and Democrats answers some of my questions.
yes. short of a coup, he’s in, especially “in exchange” for the late chief justice.
(1) ask the candidate real questions because the court system that is not transparent is not impartial.
(2) what’s the point of the hearings? if it’s a farce, then the legislature itself is a farce – which means our political system is a sham. if it just comes down to the executive and its appointed judiciary.
(3) roberts’s leanings. 10 times longer he was a legal adviser to republican politicians than he was a judge. his time as a federal judge, as far as i’m concerned, could be taken as evidence that he’s a ringer, intended for nomination when a spot became open, because (as pat robertson’s “prayer” indicated) everybody expected at least one slot to open for this president.
(4) my preferred nominee with a less rightie president would be committed neither to increasing nor decreasing the power of the federal government in daily life. only to figuring out if a particular mixture of individual wishes and institutional wishes has turned out in practice to be a big ass mistake.
From Jed’s link: supporting the Roberts nomination could make Democrats appear reasonable
… and, with appropriate lighting, give them the illusion of three dimensions!
Seriously, if the Democratic Party is looking to appear reasonable by agreeing with these Republicans, well, good luck to all of us.
Thanks,
-V.
i forgot to add to my ideal judge that i’d prefer someone who isn’t of the mind-boggling opinion that a gigantic military is A-OK but the new deal was inherently unconstitutional.
Is the point of the hearings really just so Senators can make speeches disguised as questions?
Jed: yes.
i had a dream last night that james baker had become chief justice. “our man on the supreme court.” because there’s no way to know for sure, because he’s being protected from scrutiny by da gang, that’s how i’m tending see john roberts.
i’ve just read who the next nominee for office is. this will be the second deep republican party insider nominated and probably confirmed to the supreme court, and a second set of national-security papers that fail to be released to the public in time for the rubber stamping. i fail to see how these two appointments are somehow less bad than what FDR threatened to do.
apparently now the federal government is officially at war with the general population.