Calling Balls and Strikes on the Supreme Court
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Calling Balls and Strikes on the Supreme Court
Posted by Bobby Eberle
July 14, 2009 at 7:30 am
We are now in the midst of baseball's All-Star break, and the timing of such events as the homerun derby and the game between the National and American Leagues is aptly fitting for what is going on in Washington.
The hearings in the Senate Judiciary Committee on the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court have begun. But rather than focus on elements such as whether Sotomayor brings in personal bias and prejudice into her rulings, the Democrats seem to be fixated on balls and strikes.
As noted in a story on FOXNews.com, during his 2005 confirmation hearing, now Supreme Court Chief Justice John Roberts said that being a judge is like being an umpire. A judge is tasked with calling balls and strikes, not playing the game.
"Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical," Roberts said in his opening statement at the time. "They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.
"And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it's my job to call balls and strikes and not to pitch or bat," Roberts said.
Sounds like pretty good logic to me. If a particular rule didn't end up accomplishing what it was meant to accomplish, then it is up to the rules committee to change it. It is not up to the umpire to ignore it or apply it to one batter but not the other.
Yet during Sotomayor's hearings, that logic was a sore spot with Democrats, namely because Barack Obama said he wanted a judge with "empathy" and a "sense of compassion." Now, I'm not saying I prefer cold, heartless people in any profession, but what Obama is saying here is that he's looking for a judge to see past the actual law and look at the people the law is affecting. Sorry, but that is not the role of a judge. The judge applies the law. Period.
During the hearing on Monday, Sen. Dick Durbin (D-IL) said, "It's a little hard to see home plate from right field." (A reference to Roberts) Then he added "if being a Supreme Court justice were as easy as calling balls and strikes, we wouldn't see many five-and-four decisions in the court."
"If judging were that mechanical, we would not need nine Supreme Court justices," added Sen. Sheldon Whitehouse, D-R.I.
The problem that both these senators overlook is that it should be that mechanical, but the liberals on the Supreme Court make it up as they go along. Apply a rule to some, but not to all. Apply this rule here, but not there. That is their "method."
When the rules are applied uniformly, evenly, and as they are written, then there is no place for empathy. As Sen. Jeff Sessions (R-AL) pointed out on Monday, empathy toward one is prejudice toward another.
video http://www.youtube.com/watch?v=tGxqxmnn ... r_embedded
Sotomayor's comments that she is better equipped to be a judge because of her gender and ethnicity have raised questions on her ability to be an impartial judge. As noted in the Associated Press story, "The thrust of the Republican case against Sotomayor stems from a variation of a line she used on several occasions between 1994 and 2003 in which she talked about personal experience and judging."
"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life," Sotomayor said in a speech at 2001 at the University of California, Berkeley, law school.
In contrast, during her opening remarks, Sotomayor said, "In the past month, many senators have asked me about my judicial philosophy. Simple: fidelity to the law. The task of a judge is not to make law -- it is to apply the law." Of course, just a few seconds later, she spoke of "interpreting the Constitution according to its terms" but also to interpreting "Congress's intent."
When judges start interpreting "intent" rather than the letter of the law, that's when we get legislation from the bench. If Congress or any legislative body "intended" to write a law, then they better have done it. It is either a law or it isn't.
Sotomayor would do well to heed the advice of John Roberts. If judges simply called balls and strikes, not only would the judicial system work as it was intended, but bad laws would quickly become evident, and legislators could change them. We ARE looking for an umpire. Not someone who has empathy for some and prejudice for others.
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