So I’ve been travelling around the country, helping to make a documentary about the Constitution (along with Insignia Films and TPT National Productions) for PBS. And every now and then, I’ll post some some updates and thoughts here.
Yesterday, in Charlottesville, VA, I had the honor of interviewing Judge J. Harvie Wilkinson of the Fourth Circuit Court of Appeals. He’s a gentleman and a scholar — literally! — and stands out from the crowd of pontificiators and pundits for his basic intellectual honesty: he advances the same position in all cases, even if it hurts his own side.
To wit: as he explains in this op-ed, Judge Wilkinson, a conservative, believes that both sides in our political debate are guilty of looking for political solutions over in the judiciary, where they don’t belong. And this is a genuine both-sides argument, rather than a false equivalence, in that he is unquestionably correct that liberals have often looked to the courts to validate and expand certain rights, just as conservatives have (more recently) looked to the court to validate and expand other rights. For example, he may well be personally opposed to the Affordable Health Care Act, but as he told Jess Bravin of the Wall Street Journal, he doesn’t believe the Supreme Court is the place to decide the issue. The Constitution, he eloquently pointed out to me, is not merely — or even primarily — an assertion of rights. It is a framework for deciding political questions, and the courts should always defer to the decisions made under that framework.
This is a refreshing thing to hear, especially in a political and legal environment in which many people cite Principles that support their policy goals, and tend to drop those principles when they don’t. But Judge Wilkinson said something that made me think … he endorsed the view, most famously voiced by Chief Justice John Roberts at his confirmation hearing, that judges should be “umpires,” ”calling balls and strikes” rather than interposing their opinion on what should be political questions.
The sentiment is noble, and in line with Judge Wilkinson’s sincere expression of judicial integrity and restraint. But how useful a metaphor is it? Thinking about it, the comparison of judges to (baseball) umpires is illuminating, in a different way than intended.
Consider: these are the rules for defining a strike under the current MLB Baseball Rulebook.
A STRIKE is a legal pitch when so called by the umpire, which—
(a) Is struck at by the batter and is missed;
(b) Is not struck at, if any part of the ball passes through any part of the strike
zone; Rule 2.00
(c) Is fouled by the batter when he has less than two strikes;
(d) Is bunted foul;
(e) Touches the batter as he strikes at it;
(f) Touches the batter in flight in the strike zone; or
(g) Becomes a foul tip.
The STRIKE ZONE is that area over home plate the upper limit of which is a
horizontal line at the midpoint between the top of the shoulders and the top of the uniform
pants, and the lower level is a line at the hollow beneath the kneecap. The Strike Zone shall
be determined from the batter’s stance as the batter is prepared to swing at a pitched ball.
(For diagram of STRIKE ZONE see page 23.)
And be aware that there’s even more seemingly endless rules defining foul balls, struck batters, and legal pitches, just as precisely worded. Now, imagine that the rules of baseball had been laid down in say, 1830, just as the rudimentary sport was first being played in America. And let’s say that in those rules, the definition of Strike was:
A pitch that a reasonably skilled hitter could hit.
And further, let’s say that the rules of baseball would have the force of law in all games and would be very, very hard to change… say, only by getting the vote of 3/4 of all players and fans.
How would umpires apply such a vague rule? Well, they’d rely on the work of other umpires, and precedent, and circumstances as they altered over time — as pitchers got better, and batters got better, and equipment changed. They’d consider stability to be important — the game couldn’t function if you effectively changed the rules all the time — but also understand that sometimes, change was necessary to correct prior error or to allow for new circumstances. There would probably be reams of written decisions, commentary, and commentary on commentary, helping a umpire guide exactly how he or she would define a strike in any given case; and of course in the end, the umpire would have to rely on his or her own best sense of what’s good for the game. No umpire would want to make the game impossible to play by being too strict or too lax in his or her judgements… but each umpire would have strong feelings, as a lover of the game, as to how the rule should be applied.
In other words, it would mirror the real historical state of constitutional jurisprudence. Because judges are not interpreting rules like the MLB Rulebook. They’re interpreting rules like this one:
The Congress shall have Power [....]To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.
What does “regulate commerce” mean? (and how about “among?”) Law libraries are filled with walls of volumes on that very topic; it’s never been resolved to everyone’s complete satisfaction, and probably never will be.
So the response to Judge Wilkinson’s aspiration to simply be an umpire, calling balls and strikes: well, it’s pretty to think so.
By the way, Chris Buchanan, a producer on the project (and a devoted, old school, non-bandwagon Nats fan) points out that even with the specific definition of a strike in place, it’s well known in baseball that the actual strike zone depends on the umpire behind the plate… some umps call it wide, some tight, some low and some high, and frustratingly, some keep changing from day to day. So even umpires who just call balls and strikes don’t really just call balls and strikes.