By William Fisher
With Sonia Sotomayor’s swearing in over the weekend as an Associate Justice of the U.S. Supreme Court, legal experts are aggressively debating what was learned from her four days of grueling testimony before the Senate Judiciary Committee – and whether these hearings are instructive or merely Capital Hill’s version of Kabuki Theater.
The nomination of the court’s first Latina member – and only the third woman to serve on the nation’s highest court -- was confirmed by the U.S. Senate last Friday by a vote of 68-31, with all Democrats voting “aye and nine Republicans bucking their Party’s line to do likewise. The 55-year-old nominee was sworn in by Chief Justice John Roberts on Saturday.
The widely accepted morning-after view among legal scholars is that Sotomayor’s confirmation hearings were more about politics, campaign endorsements, and financial contributions than about the business of judging.
Amidst a torrent of thinly veiled Republican accusations that her off-the-bench speeches suggested she would be a “judicial activist” on the high court – tempered only by their fear of offending Hispanic voters -- she was questioned about only two or three actual cases.
From the Democrats, there were largely softball questions, punctuated by lavish praise for Sotomayor's personal story and her "mainstream" legal philosophy.
Evidently chagrined at being unable to hit a home run with cases alone, Republican Senators turned to the nation's passtime. The baseball analogy has become widely used by nominees ever since now-Chief Justice John Roberts famously stated at his own confirmation hearings in 2005: “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 a number of legal scholars contacted by IPS expressed dismay at the use of a baseball analogy to define a jurist. To many, this represents the ultimate dumbing down of jurisprudential thinking. They ask why, if judging were only about balls and strikes, why would we need nine Justices, why would we so often have cases decided in five to four decisions, and why would so many Supreme Court rulings be reversed by later courts?
Nonetheless, the baseball analogy persisted throughout the hearings and in the vote on the Senate floor. SCOTUS (Supreme Court of the United States) Blog, a widely respected online report about the High Court’s decisions, wrote that the Senators used the phrase “balls and strikes” at least 11 times, and “umpire” or “umpires” 16 times.
For example, Senator Jeff Sessions, the highest ranking Republican on the Judiciary Committee, said that if a judge had a personal or political agenda, “Such an approach to judging means that the umpire calling the game is not neutral, but instead feels empowered to favor one team over the other.”
But Senator Sheldon Whitehouse of Rhode Island countered with, “I particularly reject the analogy of a judge to an ‘umpire’ who merely calls ‘balls and strikes’. If judging were that mechanical, we would not need nine Supreme Court Justices”
His conclusion is borne out by two centuries of Supreme Court rulings reaching different conclusions in the same cases and of majority decisions later being reversed.
The civil rights category alone – and there are dozens of categories -- provides more than ample illustrations.
For example, in a civil rights case called Dred Scott v. Sandford in 1857, the Court ruled that people of African descent imported into the United States and held as slaves were not protected by the Constitution and could never be citizens of the United States. But later the Court ruled that at least one part of the Dred Scott decision had already been reversed in 1868 by the Fourteenth Amendment, which gave equal protection of the law to.
But perhaps the most telling example in the civil rights sphere is the Court’s ruling in Plessy v. Ferguson in 1886. In a vote of 8 to 1, the justices ruled that states could force railroad companies to exclude African-Americans from first-class, or "ladies," cars. The case deprived African Americans of equal protection under the 14th Amendment and gave judicial sanction to the doctrine of “separate but equal.”
Legal experts ask, “If they were all umpires, why did one of them – the only Southerner and a slave-owner himself – dissent?
It would not be until the mid-20th Century that such decisions would begin to be reversed, the most sweeping being a unanimous 1954 landmark ruling in a case called Brown v. Board of Education of Topeka. Striking down the Plessy ruling, the Court held that "separate but equal has no place " in the field of public education.” They said separate educational facilities are “inherently unequal." The opinion spurred a social revolution.
A number of prominent legal experts have weighed in with us on the “balls and strikes” analogy.
Chip Pitts, a Lecturer at Stanford University Law School and president of the Bill of Rights Defense Committee, told us, “Notwithstanding the current public triumph of the ‘umpire’ metaphor, judging usually isn’t a matter of objectively and passively applying a simple rule from a single rulebook to a specific set of facts. Judging real cases at this time of great social and technological change -- especially cases of the sort that make it to the U.S. Supreme Court, involving complex disputes over meaning, sources of legal authority, and application to facts -- cannot possibly be crammed into such a formalistic box without doing great damage to both truth and justice.”
Marjorie Cohn, president of the National Lawyers Guild, told us, “Since he was confirmed to the Court, Roberts has behaved more like a radical right fielder than an umpire. He routinely favors corporations over individuals, and prosecutors over criminal defendants. Roberts is doing his best - quite effectively - to shape the Court into a reliable tool to further the right-wing agenda.”
And Prof. Peter M. Shane of the Ohio State University law school said, “The ideas that Supreme Court Justices are mere umpires, or that constitutional interpretation bears any authentic resemblance to following a baseball rule book, are ludicrous.”
He told us, “The right-wing has so successfully animated the public fear of ‘judicial activism’ that any candid admission that the act of judging involves actual judgment is regarded as politically fraught. This is especially regrettable because the GOP's only definition of ‘judicial activism’ seems to be judicial decision- making at odds with the Republican Party platform."
But criticism of the baseball analogy is not limited to progressives. Bruce Fein, a Conservative who served in the Department of Justice under President Ronald Reagan, told us: “The umpire metaphor of the task of a Supreme Court Justice is juvenile. There is no moral or philosophical element in calling balls or strikes -- no more so than in calculating the circumference of a circle… It is ridiculous, but once one acknowledges that, what role remains for the Senate?”
Others are also questioning the future role of the Senate. Shayana Kadidal of the Center for Constitutional Rights is among them. He told us, “In many other countries, the top judges are civil service appointees who’ve worked their way up the ladder since their graduation from law school, and thus all have very long judicial records to examine. But beyond looking at their track records, the review process doesn’t involve any questioning about judicial philosophy and beliefs.”
For decades, Supreme Court nominees didn’t appear for Senate grillings. But that was before television. Today most agree that it is unrealistic to expect politicians to give up a golden opportunity to go before the cameras for headline-making political theater.