I am a big fan of the “great and glorious game,” as Commissioner Bart Giamatti once described baseball, the game he (and I) both love. Because I am both a baseball fan and a law professor, Chief Justice John Roberts grabbed my attention when he compared the role of a judge to that of an umpire during his confirmation hearings before the Senate Judiciary Committee:
My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role. Judges and Justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.
Judges have to have the humility to recognize that they operate within a system of precedent shaped by other judges equally striving to live up to the judicial oath, and judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.
Of course, there is more than one kind of umpire, and Sen. Cornyn was a quick to pick up on this. Referring to a post he had read somewhere in the blogosphere, Sen. Cornyn recounted the “old story” about three different kinds of umpires explaining their approach to calling the game:
First was the umpire that says, 'Some are balls and some are strikes, and I call them the way they are.' The second umpire says, 'Some are balls and some are strikes, and I call them the way I see them.' The third said, 'Some are balls and some are strikes, but they ain’t nothing till I call them.'
When asked which kind of umpire was his role model for serving as a judge, Roberts hit the pitch out of the park:
Well, I think I agree with your point about the danger of analogies in some situations. It’s not the last, because they are balls and strikes regardless, and if I call them one and they are the other, that doesn’t change what they are. It just means that I got it wrong. I guess I like the one in the middle because I do think there are right answers. I know that it’s fashionable in some places to suggest that there are no right answers and that the judges are motivated by a constellation of different considerations, and because of that it should affect how we approach certain other issues. That’s not the view of the law that I subscribe to.
I think when you folks legislate, you do have something in mind in particular, and you put it into words, and you expect judges not to put in their own preference, not to substitute their judgment for you, but to implement your view of what you are accomplishing in that statute.
I think when the Framers framed the Constitution it was the same thing, and the judges are not to put in their own personal views about what the Constitution should say, but they are supposed to interpret it and apply the meaning that is in the Constitution, and I think there is meaning there, and I think there is meaning in your legislation, and the job of a good judge is to do as good a job as possible to get the right answer.
Again, I know there are those theorists who think that is futile, or because it is hard in particular cases, we should just throw up our hands and not try in any case, and I do not subscribe to that. I believe that there are right answers, and judges, if they work hard enough, are likely to come up with them.
Which kind of umpire do you think a judge should strive to be like? Which kind of umpire is the model for an "activist" judge? What is the difference between a judge who says he "calls them as they are" and one who says he "calls them as he sees them." Is one more humble than the other? Is humilty a vice or a virtue in a judge?
