Tuesday, September 13, 2005

Officiating as Metaphor or John Roberts Gets Us All Thinking

I haven't ever heard a more nuanced media discussion of officiating and officiating philosophy than I have this week.

Was there a big call? An interesting conundrum from a game? An important rule change?

No. John Roberts' Supreme Court hearings.

It all started when Roberts compared the position of Chief Justice to the role of a home plate umpire:

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 ball game to see the umpire...

I will remember that it's my job to call balls and strikes and not to pitch or bat.

Suddenly, our elected officials, faced with a choice that will impact our country's next hundred years, are thinking deeply...about officiating.

And I love it.

This entry will not be political. Instead, this will be about how the talk surrounding Roberts' metaphor reveals what we think about officiating.

Roberts suggests that officials' jobs are to enforce the rules without prejudice. Their own opinions about what a game should look like must not interfere with the calls they make.

It didn't take long before Senator Herb Kohl (D-Wis) came up with a shortcoming in Roberts' metaphor:

"No two umpires, or no two referees, have the same strike zone or call the same kind of a basketball game," said Kohl, who knows a thing or two about basketball as owner of the NBA's Milwaukee Bucks. "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."

Kohl goes on to argue that Supreme Court judges need individual flexibility, using Brown vs. Board of Ed as his example. He says a judge mired in rules would not have made the decision to integrate schools at that time. Roberts answers that they would: it wasn't sticking to a rule, it was interpreting the Constitution. He actually says that "the court was not changing the strike zone...and it wasn't necessary for them to say, We're changing the rules of the game."

I think the metaphor falls short here, since officials don't have the power to change intepretations of rules in perpetuity. The rules committee is the proper metaphor there, or an appeals board where coaches can dispute the findings of officials.

Still, Kohl's comments beg the question...is it a good thing when judges/umpires vary from individual to individual?

For good or ill, we have grown to expect different judges to interpret laws differently. A Clinton appointee will view a case differently from a Reagan appointee. I've never seen a complaint about inconsistency of decisions from court to court (although I admit I don't pay attention too closely). They have a right to interpret situations using their judgement and conscience, and if it's a 5-4 decision, that's expected.

That's not true in officiating. We're constantly asked for consistency within a crew and between crews. If I'm calling a travel that the guy didn't call last Friday, that's a problem. Sure, the players can adapt, but on the whole, I think the situation Kohl describes is tough on all of us. I tend to call it tighter than average. The players adapt, and the game becomes safer--and, I think, better. But other refs are about "let 'em play." That's a variation of interpretation that gets a lot more complaints than judges with different interpretations of law. There are also differences in enforcement. I hate it when I enforce the coach's box and am told "Nobody's ever done that before." That's a fairly simple rule, but some don't find it important. It needs to be consistently enforced--so I think officials would all be better off to agree on rules and interpretations. (And, in these cases, I think we should agree with me.)

In other words, I'm okay with courts and Justices disagreeing about whether a law is constitutional. I'm not okay with umpires disagreeing on what a strike is. As I see it, that's because sports rulebooks aren't open to nuances of interpretation in the same way the Constitution is.

And today, John Cornyn (R--Tex) revisited what offiicials are and should do:

CORNYN: [A political blog said] that your comparison of a judge to a baseball umpire reminded him of an old story about three different modes of judicial reasoning built on the same analogy.

First, was the umpire that says some are balls and some are strikes, and I call them the way they are.
The second umpire says some are balls and some are strikes, and I call them the way I see them.
The third said: Some are balls and some are strikes, but they ain't nothing till I call them.


Well, I don't know whether it's a fair question to ask you which of those three types of umpires represents your preferred mode of judicial reasoning, but I wonder if you have any comment about that.

ROBERTS: Well, I think I agree with your point about the danger of analogies in some situations. It's not the last, because they are balls and strikes regardless, and if I call them one and they're the other, that doesn't change what they are, it just means that I got it wrong.

I guess I liked the one in the middle, because I do think there are right answers...judges were not to put in their own personal views about what the Constitution should say, but they're just supposed to interpret it and apply the meaning that is in the Constitution...[T]he job of a good judge is to do as good a job as possible to get the right answer.


First of all, Roberts slipped. He obviously meant to say he liked the first umpire, not the middle one.

Second, this is where the metaphor of ref-as-Supreme-Court-Justice falls apart. My "answers" are about unique cases. They're in the moment. I'm not deciding whether a rule is just. I'm deciding if it has been broken. That's a critical difference, and as I see it fatally wounds Roberts' metaphor.

What's a more proper metaphor?

Some suggest that officiating is like teaching. It isn't. Except for very young kids, it's not my job to teach them how to play. As a teacher and as an official, I use a few similar skills, but not many. The end goals of education and officiating are totally different--the end goal of an official is order, not education.

There is only one metaphor that works for me.

As an official, I am not a judge. I am not a teacher. I am a cop on the beat.

Do I bust everybody for going a mile an hour above the speed limit? No. That doesn't make for a workable society.

Do I let everyone do what they want? No. That doesn't make for a safe or civil society.

Like a police officer, I have to let some stuff go and enforce other stuff, based mostly on pragmatic matters of the moment. If someone is speeding, but it's to get his wife to the hospital to deliver a baby, that's tolerable. If a player's jersey has emerged from her shorts, but it's an overweight fifth-grader who is wearing the only shirt they could find that could come close to fitting her, I'm not going to call it. But if a high school kid rips her jersey out of her shorts either to look cool or while protesting a call, that kid will sit down.

The interpretation and justice of a rule isn't my concern. The improvement of the players is not my concern either. My only concern is order, fairness, and evenhanded, common-sense enforcement of rules.

This week's conversations have only confirmed that cop is the only metaphor that fits.

7 Comments:

At 6:20 PM, Blogger Jim said...

I think Roberts really did mean that he's the second ump. "Some are balls and some are strikes"--objective reality--"and I call 'em the way I see 'em"--epistemological humility.

 
At 9:29 PM, Blogger Blogging Ref said...

Are you sure, Jim?

"Judges are not to put in their own personal views."

That means NOT to "call them as I see them." He's not talking about epistemological humility here. He's talking about judicial activism, I think.

 
At 10:29 PM, Blogger Jim said...

The context of the phrase matters.

"... if I call them one and they're the other, that doesn't change what they are, it just means that I got it wrong."

That's reasonable. Roberts doesn't exactly come across as a fire-breathing Antonin Scalia.

"I guess I liked the one in the middle, because I do think there are right answers..."

That's the "objective reality" bit.

"...judges were not to put in their own personal views about what the Constitution should say, but they're just supposed to interpret it and apply the meaning that is in the Constitution...[T]he job of a good judge is to do as good a job as possible to get the right answer."

This seems close to an originalist stance. Roberts grants that judges are fallible, and even with an overarching philosophy they're bound to make mistakes in interpreting and applying the law. What he denounces--letting personal views define what the Constitution should say, and not what it actually does say--is what's casually called "judicial activism." There's a fine line between the first and second umpires, and it largely has to do with one's own feeling of infallibility.

(I don't put much stock in the phrase "judicial activism," which can be applied with equal vigor to originalists and living Constitutionalists.)

 
At 10:36 PM, Blogger Jim said...

I went and read the full transcript, and the uncut quote is even more originalist than the excerpt.

 
At 8:39 AM, Blogger Blogging Ref said...

Jim,

I simply disagree. When I heard Roberts say it, the person I was listening with simultaeneously said with me: "He said the wrong one."

He wants personal views to have no impact. Hence, no "call it like I see it."

 
At 8:22 AM, Blogger Hugh said...

Blogging Ref:

Did you hear Frank Deford on Morning Edition talking about Pierluigi?

http://www.npr.org/templates/story/story.php?storyId=4857147

 
At 4:32 AM, Blogger tommyspoon said...

...is it a good thing when judges/umpires vary from individual to individual?

Unless they replace all y'all with computers, then all y'all will be different. That's because you're human. And that's neither good nor bad. Just 'tis.

 

Post a Comment

<< Home

Add Me! - Search Engine Optimization