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Kavanaugh’s ‘Judge as Umpire’ Metaphor Sounds Neutral — But It’s Deeply Conservative

September 8, 2018 in Blogs

By The Conversation

Kavanaugh thinks judges 'must be an umpire – a neutral and impartial arbiter.' So does Chief Justice Roberts.

Supreme Court nominee Judge Brett Kavanaugh invoked baseball to explain his judicial philosophy at his confirmation hearing.

“A good judge,” he said in his opening statement to the Senate Judiciary Committee on Sept. 4, “must be an umpire – a neutral and impartial arbiter who favors no litigant or policy.”

This is not the first time a Supreme Court nominee has employed the judge-as-umpire analogy. Chief Justice John Roberts told senators at his 2005 confirmation hearing, “Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. … But it is a limited role.”

The reference to America’s national pastime may sound politically neutral, but it is not.

As a scholar of judicial decision-making, I recognize that this analogy reflects the conservatism of Kavanaugh’s and Roberts’ judicial philosophies.

Originalism – getting the call right?

Conservative jurists and legal scholars believe that judges must interpret the Constitution according to its framers’ original understanding, just as umpires must call a strike on any pitch in the strike zone. There is only one answer, grounded in observable facts.

This judicial philosophy – called “originalism” – says that if judges spend enough time studying the facts of a case and American history, they will find the one correct response to a constitutional dispute.

In a 2016 speech titled “The Judge as Umpire: Ten Principles,” Kavanaugh extolled the virtues of rule-following and consistency in law and sports.

Aspiring umpires in training schools spend dozens of classroom hours poring over the baseball rule book. To apply their knowledge, they do drills on the field, practicing their footwork and learning how to react to different situations.

They strive for military precision so that strikes and outs are called correctly every time, just as the baseball commissioner intended when writing down the rules.

Originalists similarly believe that judges must interpret the Constitution precisely as the Founding Fathers did. To ignore the framers’ intention, they say, would effectively be rewriting the rules in …read more


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