Kagan Is Wrong about Umpires

Pre-Modern Umpire

One of my senators, Amy Klobuchar (D-Minnesota), asked Elena Kagan yesterday about, among other things, the question of judge-as-umpire.  It seems that Chief Justice John Roberts, during his own confirmation hearing, was asked about whether a Supreme Court justice is very much like and umpire, and he responded that, yes, they are.  Umpires don’t set the rules of baseball, just enforce them; and judges don’t make the laws, just adjudicate them.

At the risk of boring you, dear reader, let me remind you once again that I umpired baseball for twenty years.  That experience has served me well on many occasions, and I’ve even written about it in a couple of my books (e.g., The New Christians).

Modern Umpire

For the most part, I think that Kagan has comported herself extremely well in the hearings.  I’ve been able to catch bits and pieces on NPR, and I think she’s been uncowed by the Republican and Democratic grandstanding senators.

However, I do have one nit to pick.  In disagreeing with Roberts’s statement that judges are, indeed, like umpires, Kagan said,

“The metaphor might suggest to people that the law is a kind of robotic enteriprise. … That it’s easy, we call ball and strike and everything is clear cut that there is no judgment in the process. I do think that’s not right. It’s especially not right at the Supreme Court level, where the hardest cases go.”

Aaaaargh!  Anyone who thinks that umpiring a baseball game is a “robotic enterprise” has not only never umpired a game, they’ve likely never watched a game.

Postmodern Umpire

It’s true that umpires do not write the rules, any more than judges write the laws.  But, like a judge, there is a great deal of judgment and interpretation in the application of the rules.  Experience matters, and nothing is more valuable in the adjudicator of the rules/laws than commonsense.  If there’s one difference, it’s that judges usually get to think about the case for 90 days before committing themselves to a ruling, whereas umpires need to make immediate decisions on every play.

More on my thoughts on umpiring, interpretation, hermeneutics, and the tradition of Christian theological reasoning in this post on my paper that was rejected by Wheaton.

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  • Here’s to instant replay in the Supreme Court!

  • Tony, excellent points. I listened to the hearings as well and ultimately, our judgement of Ms. Kagan will likely only come “ex parte”

  • Just ask Jim Joyce if it’s a “robotic enterprise”. (If you aren’t aware of him, just Google “jim joyce no-hitter”).

    Umpires and referees have to make judgment calls the entire game. That’s why it’s so fun to yell at them. 🙂

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  • toddh

    Yeah, anyone who would call it robotic is not a baseball fan. I like the cartoon umps!

  • Greg Gorham

    Although to be fair, she did say “the metaphor might suggest to people,” not that that’s what being an umpire is actually like. When Roberts used the analogy, the robotic officiating of rules was clearly the impression he wanted to give.

  • Anon


    You are failing to draw a basic legal distinction between statutory law (i.e., laws that legislatures pass) and the common law (i.e., judge-made law). Common law fills in the gaps where there are no statutes and draws on prior precedents that have been passed down over the centuries. Judges do in fact make common law, which was Kagan’s point, as I take it.

  • Wouldn’t the problem be with Roberts, not Kagan? Roberts showed that he believes it is robotic, whole Kagan only expounded upon Roberts’ view.

  • Wouldn’t the problem be with Roberts, not Kagan? Roberts showed that he believes it is robotic, while Kagan only expounded upon Roberts’ view.