Jottings By An Employer's Lawyer

Thursday, August 06, 2009

Justice Sotomayor Confirmed, To Be Sworn In Saturday

On Saturday, Justice Sonia Sotomayor will become the third female and first Hispanic justice of the United States Supreme Court following today's 61-38 roll call vote in the Senate.

Given that Justice Sotomayor will replace Justice Souter, a consistent member of the current Court's 'liberal' wing, it seems unlikely that her presence will make for a short term dramatic change in the court's direction or voting patterns.

Listening to the speeches for and against Judge Sotomayor, one of the things that struck me is that it is perhaps time for us to put to rest Judge Roberts famous metaphor that he would serve just as an umpire, calling balls and strikes with complete impartiality. Putting it aside is not to impugn Justice Roberts' integrity when he made those comments, but rather to recognize that even umpires set their own strike zone.

Bruce Weber had a similar thought in his article last month in the NYT, Umpires v. Judges.

But if you really want to look at it just from a baseball perspective, check out A Zone of Their Own or this quote from an amateur umpire's guide:
On warm summer night I watched a pitcher working his stuff against a senior umpire I have worked with and respect. It was men's league and particularly humid that night. After watching three of "his best" go for naught he said to the umpire, "Blue, where's your strike zone?" My friend replied, "You've got nine innings to find it!" The umpire's strike zone is the umpire's strike zone. I can assure that pitcher that if my friend was calling "ball" it wasn't even near the plate, for he taught me to "go in expecting a strike every time!"

Floating out over that plate is almost a perfect cube, about 15 inches up in the air, nearly 22 inches wide, 24 inches high and yes, 22 inches deep. "I call a big zone." Why? Because I think strikes. Working with younger ball players you have to think that way. Sure, as the quality of the player increases some think an umpire might boil an inch or two, maybe more, off the top but then he remembers that the quality of the batter has also increased so they feel he adds an inch or two at the sides. Its all relative. Truth is, call the same "strike-able" zone at all levels unless the rules specifically dictate a change. No umpire can give an inch to this level, take off two in the next age group, call at the shoulders in another, and claim a consistent strike zone.

Your league and its traditions will define the strike zone as much as any rule book will. By some books every pitch that crosses the batter shoulders would potentially be a strike.. Does any umpire really call them up that high? Some associations call at the belt buckle as the top of the zone, others call half-way down the calf as the lower part. In some areas "painting the black" is the norm while in others the ball has to have the full plate. Regardless of your definitions, restrictions or instructions THINK STRIKES ON EVERY PITCH! A pitch has to convince you it is a ball before you will not call it a strike. This positive mental approach will increase your consistency and move the game along more than any other mechanic you can learn.

It may be awhile before we do this again, but now would be a good time to realize that while deciding Supreme Court cases may be both more complex and with higher stakes than merely calling balls and strikes, neither is an exact science.

Just as the umpire who calls them as we see them, is viewed as right, and the one who calls them any other way is a bum; the Justice who calls them the way we view the law is interpreting the law (good), while the one who calls it in a way that we wouldn't, is making law (bad).

It's an oversimplification, but no more so than most of the rationales we hear for votes on Supreme Court nominations, including the one just concluded today. Surely, Senators you can do better.

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