Judge as Umpire

Interesting game metaphors were used by Judge Roberts in his opening remarks to the Senate panel:

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...

I admire (and generally share) the aspiration that Roberts expresses -- but of course, expounding the Constitution really isn't that much like enforcing the rules of baseball. For a slightly different view, here's the great Justice Benjamin Cardozo from The Nature of the Judicial Process, pages 13-14.

[C]odes and statutes do not render the judge superfluous, nor his work perfunctory and mechanical. There are gaps to be filled. There are doubts and ambiguities to be cleared. There are hardships and wrongs to be mitigated if not avoided. Interpretation is often spoken of as if it were nothing but the search and the discovery of a meaning which, however obscure and latent, had none the less a real and ascertainable pre-existence in the legislator's mind. The process is, indeed, that at times, but it is often something more.

It might be noted that confirmation hearings are generally viewed as a game of sorts -- the analogy to umpires might be seen, therefore, as a bit of rhetorical pitching and batting.

Comments

[Richard Bartle]

1.

It works the other way round, too. American football has "line judges", rugby has "touch judges", tennis has "net-cord judges".

DMs in RPGs used to be called judges, too, in the early days (remember Judges Guild, or am I the only oldie here?).

Richard

[greglas]

2.

Yeah, Huizinga has a chapter on this, which is why it jumped out at me. Apparently it jumped out at Ann Althouse too:

http://althouse.blogspot.com/2005/09/roberts-confirmation-hearing.html

That link is a good play-by-play, btw.

[Peter Edelmann]

3.

Jim Lindgren, over at the Volokh Conspiracy, also does some playing around with Robert's analogy, with an old story which illustrates different types of legal reasoning:

First umpire: “Some are balls and some are strikes, and I call them as they are.”
Second umpire: “Some are balls and some are strikes, and I call them as I see 'em.”
Third umpire: “Some are balls and some are strikes, but they ain’t nothin' ‘til I call 'em.”

Lindgren goes on to compare the three umpires to the views of judges by essentialist, traditional liberal democratic, and critical legal studies theorists. Who knew baseball could be so much fun?

[Jim Self]

4.

Let's see if I can throw some discussion about games in here...

Has anyone else thought about how games are used even by the highest levels of authority (at least in the US) to illustrate their point? Roberts could have talked about the sacred seperation of powers between the legislation and the judiciary, but rather he chose to use the "American Pasttime" to do so.

The man knew he was going to be on TV, and so he chose an example with which almost everyone would be familiar. But why didn't he make reference to, say, a GM from World of Warcraft? "I don't write the code, I just enforce the intent of the game designers."

The generation gap is a known factor. What about diversity? In sports there are 3 big games, with hockey and soccer becoming more popular. In video gaming there are at least 3,000 games.

So, if the video game industry consisted of just a handful of major games but with the same size of gaming community, would important people be taking examples from them (Grand Theft Auto aside)? Do we use sports as examples just because we've had them so long, or because sports fans only have their attention split 3 ways, or both?

[Jeff Cole]

5.

I thought it was a pretty appropriate (and neat!) simile.

Much more interesting than any quantitative correlation between umps and judges is the qualitative analysis used to arrive at any particular correlation.

Jeff Cole

[galiel]

6.

It's a completely phony simile, designed by professional speechwriter/spinners for the judge's use. That should be evident regardless of one's political proclivities, if one doesn't let them blind one to basic facts.

The law in general, and Constitutional interpretation in particular, is *not* analagous to an umpire's role at all. There is no dispute about whether four balls are a walk, or three strikes and you're out. The umpire attempts to determine whether a ball flew through a particular window. It is not the case that new social or technical developments introduce a bowling ball to the mix, or a fourth outfielder. In fact, it is tradition rather than rational necessity that keeps human umpire's in the mix rather than making all determinations by machine (don't get me wrong, I support the tradition as an essential and wonderfully imperfect variable in the game). An umpire does not need, and is not empowered, to interpret what was meant by the infield fly rule, merely to observe whether it was triggered.

Trivializing the role of adapting law, not to mention 200-year-old Constitional clauses, to current, continuously morphing and largely unanticipated specific ideosyncractic incident, is phony cant meant to confuse and obfuscate, not to illuminate.

The fact is that Roberts interprets the Constitution as actively and personally and ideosyncratically as any judge, he just reaches radically different conclusions about meaning than judges with a different political ideology. The Constitution is not an inclusive document like the rules of baseball, meant to cover every contingency with absolute detail within a highly constrained environment; it is, rather, a general document laying out fundamental principles and guidelines from which specific laws and specific rulings are derived--based on one's interpretation of how they apply and adapt to modern circumstances.

Let's not be wowed by the game connection and think that this was anything but a carefully designed PR metaphor intended to deceive the public about the true nature of these hearings and the true implications of the nomination they should be determining.

Again, regardless of one's political leanings, umpire not equal supreme court justice.

[Jeff Cole]

7.

Not sure how a simile can be "completely phony." A simile compares essentially different (i.e. does not equate) things.

To summarily dismiss a simile because of those differences completely misses the point of a simile.

A simile is what you make of it. The extent to which a simile confuses and obfuscates, or illuminates says more about the person than the simile.

Jeff Cole

[galiel]

8.

The extent to which a simile confuses and obfuscates, or illuminates says more about the person than the simile.

Nonsense. "Britney Spears is like a Nazi, because they both wear stylized clothing, so allowing her to sing is an endorsement of Adolph Hitler's philosopy" is a poor simile. Finding it useless is not a reflection on the person finding it so, it is a reflection of the poor thinking of the person making the simile (as well as a deliberately useless and gratuitous triggering of Godwin).

This pomo notion that there is no such thing as valid or invalid statements, just opinion, and that all opinions are equally valid, makes any attempt to share and learn futile.

A simile is useful to the extent that it contributes to our understanding, and harmful to the extent that it deceives us.

In politics, false similes are used all the time with the deliberate intent to deceive. To suggest that the fault is with the recipient rather than the deliverer is utter nonsense.

[Jeff Cole]

9.

Your example goes beyond simile.

Not sure from what you get the idea that I was saying that statements could be neither valid nor invalid, or that there is only opinion.

I also wasn't saying there weren't poor similes. I was saying that I didn't understand how a simile could be "completely phony" or "false."

Peter's post above is a great example the umpire simile well examined with respect to judicial philsophies.

All similes necessarily fail at some point because they are comparing (not equating!) two essentially different things. Your strained comparison stretches the simile far beyond that point.

One simile, two applications. I still say the utility inheres in the application, not the simile.

Jeff

[Bart Stewart]

10.

I can see two obvious reasons why Roberts might use a baseball reference to communicate his views, both of which revolve around the fact that he was talking to members of Congress.

1. The sport of baseball occupies a special place in U.S. federal statute law -- it enjoys an exemption from provisions of antitrust law that other sports don't. This is why baseball players testified before Congress on the steroid issue recently; Roberts could thus use a baseball analogy because it's something that he knew members of Congress could relate to. (I don't know that this is the case; I'm simply suggesting that it's possible.)

2. Political acumen doesn't imply intelligence. Using a simple baseball-related analogy that most members of Congress -- including the Senate Judiciary Committee -- are capable of understanding is something that anyone with federal experience (such as Roberts) might consider to be effective. That's not "deception," that's an attempt to communicate.

Could Roberts have chosen some other way to describe his concept of what a good SCOTUS justice should do? Sure, and it would have been imperfect in some way, too.

There was no problem with Roberts's umpire simile. The people who needed to get it, got it. The only question is whether one agrees with his view that "good" umpires -- and judges -- don't try to rewrite the rules of the game or actively play it.

(I'm with you on the whole "postmodernism" thing, though. Pseudo-academic gibberish that sheds no light whatsoever on the human condition.)

--Bart

[David Wintheiser]

11.

galiel wrote:

"The Constitution is not an inclusive document like the rules of baseball, meant to cover every contingency with absolute detail within a highly constrained environment;"

It's ironic that you should make this statement, because taking a look at the Official Rules of Baseball (available at http://mlb.mlb.com/NASApp/mlb/mlb/official_info/official_rules/foreword.jsp) actually shows that the 'official rules' actually leave a great deal of discretion to the umpires:

Rule 1.16 (Helmets): "If the violation is not corrected within a reasonable time, in the umpire's judgment, the umpire shall eject the offender from the game"

Rule 3.05b (minimum number of batters to be faced by a pitcher): "If the pitcher is replaced, the substitute pitcher shall pitch to the batter then at bat, or any substitute batter, until such batter is put out or reaches first base, or until the offensive team is put out, unless the substitute pitcher sustains injury or illness which, in the umpire in chief's judgment, incapacitates him for further play as a pitcher"

Rule 3.10b (suspension and calling of games because of bad weather or field conditions): "The umpire in chief of the first game shall be the sole judge as to whether the second game of a doubleheader shall not be started because of unsuitable weather conditions or the unfit condition of the playing field."

There are plenty more examples, but in all seriousness, the most striking example of umpires not really being passive arbiters of hard-and-fast rules is this one:

Rule 3.13 (Ground Rules): "The manager of the home team shall present to the umpire in chief and the opposing manager any ground rules he thinks necessary covering the overflow of spectators upon the playing field, batted or thrown balls into such overflow, or any other contingencies. If these rules are acceptable to the opposing manager they shall be legal. If these rules are unacceptable to the opposing manager, the umpire in chief shall make and enforce any special ground rules he thinks are made necessary by ground conditions, which shall not conflict with the official playing rules."

Being an umpire and being an activist aren't necessarily contradictory, if the situation calls for it. Note that the rule above doesn't require the umpire in chief to actually use any of the rules presented by the home manager, for instance.

[galiel]

12.

All similes necessarily fail at some point because they are comparing (not equating!) two essentially different things

More of the "all opinions are equally valid" stuff. I wrote in detail why this simile was bogus. You chose to ignore all the substance and nitpick a word, and then imply the fault was solely in the interpreter, rather than in the presenter.

I, and I suspect everyone else, would be more interested to hear how you defend the simile against my specific refutations, rather than hear about how my comments say more about me than about what I am commenting on.

The MLB rulebook is not comparable to the Constitution in any way that is relevant to the discussion at the hearings, and the fixed and constrained reality of baseball umpiring is nothing like the fluid, evolving and novel phenomena of real life judging.

Bart, the main problem with your comments is that you keep pretending that Robert's spontaneously and genuinely and originally came up with this simile, rather than regurgitating the careful talking points he has been prepared with by his handlers. Why does that matter? Because this simile was designed to decieve and obfuscate, not to honestly illuminate. Why? Because the ends-justify-the-means zealots who are intent on installing him in the SC have no intent of letting his true opinions and philosophy be revealed so that Congress, and the public, can make an informed decision about whether they want someone with those opinions and philosophy in the highest court of the land.

My objection is not with Robert's opinion, per se. My objection is with deception and obfuscation designed to prevent informed decisionmaking in a democracy.

There is recent antecedent to this. Clarence Thomas simply lied about his intentions in his hearing, for example stating he would not vote to overturn Roe v. Wade, and then voting consistently to overturn it.

In a democracy, there is nothing wrong with people pursuing radical agendas or holding reactionary views. The only thing that is wrong is when they seek to hide them, or when they collude with authority seeking to hide their true nature, in order to gain a powerful position which allows them to thwart the will of the people and pursue an extreme minority agenda.

Let the people, and their elected representatives, know the facts, and then let them make informed decisions. That is vital to a democracy. In recent years, there has been a concerted effort to treat US citizens and their representatives like mushrooms - kept in the dark and fed bullshit.

I merely called attention to a bullshit simile that stank from the outset.

[magicback (Frank)]

13.

galiel said:
"Bart, the main problem with your comments is that you keep pretending that Robert's spontaneously and genuinely and originally came up with this simile, rather than regurgitating the careful talking points he has been prepared with by his handlers. Why does that matter? Because this simile was designed to decieve and obfuscate, not to honestly illuminate. Why? Because the ends-justify-the-means zealots who are intent on installing him in the SC have no intent of letting his true opinions and philosophy be revealed so that Congress, and the public, can make an informed decision about whether they want someone with those opinions and philosophy in the highest court of the land.

My objection is not with Robert's opinion, per se. My objection is with deception and obfuscation designed to prevent informed decisionmaking in a democracy."

Galiel, I think we all get the point and as greg state at the end of his intro comments:

"It might be noted that confirmation hearings are generally viewed as a game of sorts -- the analogy to umpires might be seen, therefore, as a bit of rhetorical pitching and batting."

Calling the noted simile/metaphor/whatever used by Roberts as "bullshit" in this forum, IMO, adds no value to the discussion. Most us already know that this is a bit of political doublespeak.

I think the umpire comment was aptly used and Greg's reference to "baseball pitching and batting" apt too.

Frank

[galiel]

14.

Frank, some points taken.

However, there are two reasons examining the merits of this simile are directly relevant to the focus here at Terra Nova, and not merely a political debate:

1) The tendency to reduce complex multiparticipant phenomena to simplistic, binary trees conducive to encapsulation in algorithms is problemmatic, if it doesn't work/isn't the best approach.

Folks tried for years to emulate the flapping wings of birds in order to fly, before a fixed-wing model designed based on an understanding of airflow and lift let us fly.

One can easily see how an umpire can be replaced by software. The illusion this simile gives is that a judge can be as well, that the only difference is orders of complexity.

I would argue that the difference is not just quantitative but qualitative. Now, being a rationalist reductionist, I have no doubt that, eventually, we will be able to understand intelligence as the cumulative response to an incredibly large and complex set of inputs; however, that does not mean that emulating intelligence is a reductive exercise, necessarily.

We know that emergent behavior and synergy are real phenomena. By definition, however, we can't anticipate exactly what will emerge from complex systems, or how combinations of certain things exceed the sum of their parts.

Technically, it is correct to say that the desk I am typing at is largely comprised of empty space. That still doesn't mean I can pass my hand through it - even though, technically, my hand is largely comprised of empty space as well.

Similarly, even though technically and abstractly one could view judicial review as nothing more than a weighing of absolutes and solving variable equations, in reality justice is, at our current level of understanding of the universe, nowhere near reducable to a series of binary decisions.

Thus, I would argue, similes like this are dangerous, misleading and unproductive to our work.

2) We operate in the realm of popular culture. Games are not remote things like pulsars in a distant part of the galaxy, which we study with little consideration or concern about how they affect the debate on civil rights. We work directly within the realm of popular culture, and similes like this feed into the illusion that our game design choices have no moral or ethical consequences, just as Roberts feeds the illusion that mere umpiring of unambiguous code/law has no moral or ethical implications. They feed the illusion that life is a clean, crisp thing; thus, we design war games that exclude the suffering of civilians; we design looting games that exclude the suffering of the victims of the theft; we design great, archetypal battles between "good" and "evil" that assume that there are clean-cut, unambiguous distinctions.

In fact, our game designs, much as we profess they are "just art", actually feed into and reinforce memes of popular culture which just happen to serve purposes not only orthogonal, but often detrimental and oppositional to the interests of democracy.

It is too easy and facile to dismiss my argument as political, as if somehow what we do has no political significance. If anything, the use of game metaphor in a politically-charged context should remind us all of how the design choices we make ultimately affect popular culture, and society as a whole.

[magicback]

15.

Galiel,

Sorry for sounding so absolute. The points you raise to have some value and I agree the similes like this are dangerous, misleading and unproductive to our work.

But I take the usage within the context of the hearing and evaluate as such. Perhaps it was my perception that someone in Robert's position has to reference something like baseball to get his message (whatever he or his speech writer) wanted to make) across.

And I guess I have ingrain in my brain a "workaround" to such doubletalk and filtering out the junk to get to the subtext.

Judges are more than mere umpires. The comparison is dangerous. Agreed.

I’m just more interested in why the simile was used and what the usage say about the communicator and receivers in the context it was delivered.

Frank

[Peter Edelmann]

16.

So far, the discussion has focussed on the aptitude of comparing a supreme court judge to an umpire, insofar as the analogy provides insight (or lack thereof) into the role of the judge, and the reasons Roberts presented the analogy at all. While I have found the discussion interesting (both here and elsewhere), I think the discussion of this issue is equally fascinating for the inverse reason - the ways it can inform us about the role of the referee/game master. Michael McCann at the Sports Law Blog talked about Robert's umpire analogy on Wednesday and Greg Skidmore added some comments today. In the course of his discussion, McCann links to an article about the Questec Umpire Information System, a computer system which helps assess umpire performance at the plate. From the article:

A core weakness of the system is that it consistently misses certain types of pitches, mostly sweeping pitches (sliders and curves), as well as late, hard, 'boring' pitches such as the cut fastball. These pitches can land all the way into the opposite batter's box, but because they caught a tiny slice of the front corner of the plate, the computer calls them strikes. No umpire who values his safety is going to call a pitch that lands in the opposite batter's box a strike.

The difficulty in automating the process contrasts with virtual worlds, since in theory this wouldn't be an issue in a computer-mediated version of the game. Most debates about refereeing in hockey, for example, have to do with the human element (tripping, fighting, etc.) and require judgement calls by the referee. Once the human players are structured (and enormously simplified) in code, such elements become part of the game mechanics and unambiguous automated decisions can be made. And yet experience in managing deviance in online multiplayer games belies the simplicity of the solution. As soon as actual humans are reintegrated as a factor, automation is no longer a catch-all option. The fact that aspects of refereeing cannot be automated is the very reason virtual worlds still spend considerable time and energy on game masters/community managers (and those that don't pay the price... qv. Peter Ludlow's criticisms of TSO).
For those who see judges and umpires as fundamentally different, I would be interested to hear your thoughts on the role of referees in virtual worlds. Are they more analogous to umpires? Or will they become more and more akin to judges as the worlds in question increase in complexity and importance in people's lives? Do different types of virtual worlds call for different types of refereeing? (in particular I am thinking about the game/social world dichotomy - although the relevance to Ren's "civic" worlds raises interesting dilemmas...)
PS - I would be very interested in any good theory/research on refereeing folks know of...

[galiel]

17.

Just FYI, comparing judges to umpires is an old Christian-conservative simile, particularly popular in recent years in Dominionist circles. It is not something new Roberts sprung at this hearing.

See for example the use of the judge-umpire simile, using in fact the same language and extended metaphors Roberts used, in this Q & A on Focus on the Family's website from back in April:

http://www.family.org/cforum/fosi/government/courts/supreme/a0036199.cfm

Q: What is a judge's proper role?

A: The proper role of a judge is to be an umpire. A baseball umpire calls balls and strikes, but doesn't change the rules of baseball in the process. Applying the analogy, a judge (umpire) applies the law (rules of baseball) to the facts of a particular case (a pitch, a runner tagged out, a fly ball caught or missed) to arrive at a judgment (strikes, outs, foul balls, etc.)....

Q: That sounds simple. So how does judicial activism enter the picture?

A: Judicial activism occurs when a judge wants to change the rules of the game...(goes on to single out Roe v. Wade as an example, and by extension Griswold's establishment of a right to privacy)

Roberts comment was a deliberately calibrated White House signal, a wink, if you will, to a certain antidemocratic audience that he is one of them.

It is simply a way of talking about the theocratic regency principle without raising First Amendment red flags. Quite similar to the Dominionist catchphrases the Secretary of State of Ohio uses in his state's new "character ethics" code, titled "Uncommon Sense" (the anti-Paine title alone should be a tip-off).

If you're going to view this as a game, you should get aquainted with the players.

[greglas]

18.

Peter -- thanks for the links.

Here's Slate on the issue, btw:
http://slate.msn.com/id/2126241/?nav=navoa

The baseball/law comparison has a long history -- see, e.g.:

http://baseball.oyez.org/about.html
http://www.onlybaseballmatters.com/archives/2005/04/14-the_late_bart_giamatti_a.php

[greglas]

19.

Seems Senator Specter pitched some Cardozo at Roberts. Jack Balkin was optimistic about how Roberts batted:

http://balkin.blogspot.com/2005/09/john-roberts-and-living-constitution.html

[galiel]

20.

The comparison of judges to umpires as far as Constitutional law is concerned is used differently in this context than the traditional baseball/law analogies you refer to. I recommend reading up on Dominionism, Christian Reconstructionism, Theonomy, Regency, the Constitution Restoration Act and the Wedge Strategy if you are curious about the bigger picture of what this particular reference is all about.

Bruce Hausknecht is a regular commentator with Focus on the Family. Is there some other significance to mentioning his name here? Does he have a videogame background? That would be interesting...

[Mike Sellers]

21.

I believe Roberts has said explicitly in his testimony before Congress that he understands the Constitution to provide for a right to privacy, which is part of the foundation of Roe, and that he has no agenda to roll it back.

Of course he could be lying through his teeth, but there's no evidence for that -- or that he has any relationship at all to the kinds of movements you mention, David, nor that he has any intention of, for example, overturning precedents going back to McCulloch v. Maryland (one of the early strong-federalism cases, and one which I think generally supports a loose "judge as umpire" analogy).

Stretching for game-relevance here, I had a connection between McCulloch and MMOG design, going back to the systemic rather than simple enumerated design of social systems discussed earlier, but I think that's probably a dead horse for now.

[galiel]

22.

There is evidence, actually, but this is not a political blog and I've already gotten into enough trouble by introducing that here, which is why, rather than linking to extensive expositions on the topic, I merely suggested that interested folks search on certain keywords. That way, people can do original research and make up their own minds.

The only reason I brought all of that up is that folks were evaluating the umpire-judge analogy without what I consider some critical context. They were making implicit political statements by making assumptions about the intent of the simile that my information tells me are incorrect assumptions, that's all.

Most of all, I wish we'd actually have some conversation about the substance of the critique, which is about the fundamental qualitative (rather than quantitative) difference between umpiring a game like baseball as measured against the rule-book, and adjudicating real life cases as measured against the Constitution.

The analogy, as I asserted (an assertion I hoped would be challenged and engaged) has implications both for an AI approach to automating judgement and for the cultural influence of our game designs. Other than Peter, everyone else seems more interested in disproving political assertions about Roberts rather than debating the game-relevant issues.

If anyone wants, off-list, I would be happy to provide extensive resources on theocracy movements in America and on the connections various sitting judges, elected officials and corporate executives have to them. It is a topic I have studied closely for five years now, and I am more than happy to share what I know, since very little of it reaches the popular press. But it is not a suitable topic for this forum, and I apologize to the extent my comments derailed what could be an interesting game design discussion.