Chief Umpire of the Supreme Court

A former owner of the Texas Rangers is in the White House.

Rafael Palmeiro and Sammy Sosa have testified before Congress.

And now, a potential Chief Justice of the Supreme Court thinks he's John Hirschbeck or Eric Gregg.

Is this what they meant by baseball returning to our Nation's Capital this year?

Metaphorically, baseball and politics are a perfect marriage — a sport that still trades off its legacy as America's Pastime, years after football toppled it from that throne, and a profession where survival depends on how well one exploits a superfluous façade of patriotism-masking-capitalism like the Old Ballgame.

Baseball is everywhere in the political process. Throwing out the first pitch at a local ballpark is as much a part of campaigning as smooching stinky toddlers. New York senatorial candidates declare their diamond allegiances before their party affiliations.

And then there's the Democratic Party, which has gone 0-for-2 and has no balls...

This week, it was Judge John Roberts — nominated by President Bush as the next Chief Justice of the Supreme Court — who mixed baseball with political discourse. Naturally, the career politicians on the Senate Judiciary Committee stuck to the analogy like a public hair on a cola can.

In his opening remarks to the committee during his conformation hearing, Roberts compared the humility of a judge to the selflessness of a baseball umpire:

"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 ballgame to see the umpire."

(That last line nearly undoes the entire analogy, unless Roberts momentarily forgot about judges Judy, Wapner, Joe Brown, and whoever the dude on "Texas Justice" is.)

Let's examine this statement. "Umpires don't make the rules; they apply them." For the most part, accurate. But the proper term is "interpret" them, especially when it comes to the strike zone. Judges can look back on decades of legal precedents to formulate an appropriate ruling and, many times, are bound by those precedents.

Umpires also have decades of rulings to fall back on — but in the end, it comes down to whatever zone they choose to establish in a given at-bat. Hence, major league strike zones are like snowflakes and assholes — everyone's got one, and they're all different.

(I'm making an educated guess on the latter example. One, because it sounded funny and, two, because they really don't pay me enough to check my facts in this instance.)

Sen. Joe Biden really wants to be president, but he took time out of his campaign speech to ask Roberts about the entire umpire/judge/strike zone conundrum during his questioning at the hearing:

"As you know, in Major League Baseball, they have a rule. Rule two defines the strike zone. It basically says from the shoulders to the knees. And the only question about judges is: do they have good eyesight or not? They don't get to change the strike zone. They don't get to say, 'That was down around the ankles and I think it was a strike.' They don't get to do that."

Biden continued, saying that certain "strikes zones" are established by the Constitution, while others are not:

"As you pointed out in the question to Senator Hatch, I think, you said unreasonable search and seizure. What constitutes unreasonable?

So, as much as I respect your metaphor, it's not very apt, because you get to determine the strike zone. What's unreasonable?

Your strike zone on reasonable/unreasonable may be very different than another judge's view of what is reasonable or unreasonable search and seizure."

And now we see the basic difference between umpires and Supreme Court justices: instead of reshaping the strike zone during each game, Roberts will have the ability to define what a "strike" in fact is. In other words, if a batter misses with a Herculean swing, it's going to be called a strike — unless someone in a position of power changes what a swing-and-a-miss constitutes. With one ruling, it could mean a walk instead of a 'K.'

Oh dear! Would that be "legislating from the bench?" Perish the thought!

"Legislating from the bench" has become one of those ugly talking-point slurs in the last few years, like "liberal" or "fundamentalist" or "French-looking." I've always viewed the American courts system as a series of checks and balances on the maturation of society. While elected officials serve their financial and electoral masters, appointed judges serve the greater good. (Although sometimes they sacrifice their livelihoods to get a six-ton stone monument of Jesus reading the 10 Commandments erected in front of the courthouse.)

I know my view of the American legal system is Pollyannaish. But no more so that Roberts's view of what a judge does:

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."

What nonsense. How many judges have used their own personal biases to rule in sensitive cases? How many have ruled one way or another because the person who hired them ... er, "appointed" them ... wanted to reinforce or demolish a legal precedent?

When Clarence Thomas is in chorus with Antonin Scalia like Roxy Hart sitting on Billy Flynn's knee in "Chicago," is his main concern "living up to the judicial oath" or ensuring that party will always trump precedent?

When a judge awards a life-long smoker $100 billion in damages because Joe Camel had a poorly-worded disclaimer on its magic cancer injectors, isn't that just unmitigated revenge on a disreputable industry instead of sound legal reasoning?

I think the biggest flaw in Roberts' s umpire analogy comes when one considers the basic difference between baseball and society: one is constant, and one is constantly changing.

Modern-day baseball is going to be the baseball we have 50 years from now: nine innings, four balls, three strikes, two teams, one pitcher, and one batter.

Who the hell knows what the world's going to look like in 50 years? Who knows what progressive ideas in culture and industry are going to shape American life? Whatever they are, it's going to take judges who aren't just willing to fall back on "traditional" precedents to move us forward. We need judges, at every level, with an equal respect for the law and for humanity.

Sen. Herb Kohl of Wisconsin said it best during the confirmation hearing:

"No two umpires or no two referees have the same strike zone or call the same kind of a basketball game. And ballplayers and basketball players understand that depending upon who the umpire is and who the referee is, the game can be called entirely differently.

When we look at real legal cases, I wonder whether or not your analogy works. For example, in our private conversation, I asked you whether the words of the Constitution must always be interpreted in the same way as the authors originally intended.

For example, the Fourteenth Amendment, which guarantees equal protection under the laws to all citizens, was written at a time when schools were in fact segregated based on race.

And yet, in Brown v. Board of Education, the equal protection clause was interpreted to find segregated schools unconstitutional. And you, of course, have endorsed that decision.

No one disagrees with that conclusion today, but would a neutral umpire, as you described yourself yesterday, have decided back in 1954 to expand the words of the Constitution outside of the strike zone? Would a neutral umpire have overturned a 58-year-old Supreme Court precedent and gone against the understanding of the authors of the Fourteenth Amendment and also the views of almost half of the state legislatures at that time in making the decision that they made?"

Get Me Off This Train

I don't drink Coors. I'm not a beer snob — I have a tasty Miller Lite in front of me right now, and sixer of that costs less than a movie ticket — but Coors, to me, tastes like watered-down Bud, which is really saying something.

At the very least, Coors always seemed to understand that if your product sucks, the very least you can do is completely toss your ethics out the window to sell the swill.

Call it "the silver bullet" in a Brady Bill age.

Hire ESPN "journalists" to pimp the beer.

And TWWWWWWWWINNNS!

Hot, blonde, sexy twins, gyrating to an Adam Sandler-esque theme song whose lyrics could be boiled down to:

"I

love

football on TV

Lethal Weapon 3

Base solos by Flea

AND TWWWWWWWWINNNS!"

Perfect. There's no reason to change the gameplan. You've executed it to the best of your ability.

But no, Coors couldn't leave well enough alone. Now we get what has to be the single worst beer commercial I've ever seen on a football telecast: The Coors Love Train.

The O'Jays are awesome, and "Love Train" is an awesome song. But a magic choo-choo that makes hot people feel chilly? Isn't that, like, every breath mint commercial ever made?

I expect more from my beer commercials. Derail the Love Train now!

Greg Wyshynski is the Features Editor for SportsFan Magazine in Washington, DC, and the Senior Sports Editor for The Connection Newspapers of Northern Virginia. His book "Glow Pucks and 10-Cent Beer: The 101 Worst Ideas in Sports History" will be published in Spring 2006. His columns appear every Saturday on Sports Central. You can e-mail Greg at [email protected].