Give 'Em The Hook, Sonia! Baseball Ain't Life Or Death — That's Why They Play 182 Games

I couldn’t see well enough to play when I was a boy, so they gave me a special job — they made me an umpire.
– Harry S. Truman

Ria Cortesio, Bernice Gera, Pam Postema, Perry Lee Barber, Ila Valcarcel, Theresa Fairlady and Mona Osborne are women who have umpired professional baseball games. May Sonia Sotomayor escape their fate. If this is (fair & balanced) metaphor-busting, so be it.

[x NY Fishwrap]
The Deciders: Umpires v. Judges
By Bruce Weber

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activism baseball bat beliefs bias bring brown called case court decision declared em established foster game harris hearings infect john judge judicial justice law metaphor minority mr personal pine plays possible precedent public rather republican roberts role rules school senator strike supreme tar tschida umpires videotape view week wrote zone

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“Have you read Roe v. Wade?” Tim Tschida was saying to me. “It’s very clear.”

This was three years ago. It was an unexpected moment to bring up the 1973 Supreme Court decision that established a right to abortion. Mr. Tschida is a major-league umpire and we were on our way to the ballpark. I had just asked him why the strike zone, an entity seemingly well defined by the baseball rulebook, was such a bone of contention in the game. And in a flash Mr. Tschida made the instinctive comparison between an umpire’s conundrum and a high court justice’s.

“What it says is very clear. And we’ve still been fighting for 25 or 30 years over what it means.”

An argument for judicial activism? Well, no.

But as President Obama’s nominee for the Supreme Court, Judge Sonia Sotomayor, heads to the Senate this week for confirmation hearings, Mr. Tschida’s assertion that umpires are like judges is especially pertinent because the analogy most famously goes the other way around.

It was in September 2005, just as I was starting research for a book about umpires, that the man who would become chief justice, John G. Roberts Jr., elevated my subjects to the central metaphorical role in American jurisprudence.

“Judges are like umpires,” Judge Roberts declared in the opening remarks to his own confirmation hearings. “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.”

Judge Roberts was far from the first to make the comparison, which dots the literature of the 20th century, legal and otherwise. He wasn’t even the first to make it in the Senate that day. Addressing him in his own introductory remarks, Senator Jeff Sessions, Republican of Alabama, asserted: “What we must have — what our legal system demands — is a fair and unbiased umpire, one who calls the game according to the existing rules and does so competently and honestly every day.”

But since the Roberts hearings, the umpire metaphor has become synonymous, at least in public debate, with judicial restraint, the idea that judges are merely arbiters, that their job is not to set aside precedent and create law but to decide cases on the basis of established law. To do this, the argument goes, judges must check their personal beliefs and biases (not the same thing) at the door of the courtroom, just as an umpire should bring no opinion about how baseball ought to be played or rooting interest to the diamond.

“Activism is when a judge allows his personal views on a policy issue to infect his judgment,” Mr. Sessions warned Judge Roberts during the hearing.

Thus does the umpire metaphor misleadingly jumble together the ideas of belief, bias and activism, as though all personal viewpoints are somehow tainted for being personal. Judges with personal beliefs make objective decisions all the time, after all. (That the senator used the word “infect” rather than “affect” might be construed as indicating his own bias.)

Then, too, it is possible for a judge to perceive the discarding of precedent as a matter of judicial restraint rather than judicial activism. Judge Roberts acknowledged this as his view of Brown v. Board of Education, the 1954 decision that made school segregation illegal, setting aside an 1896 case, Plessy v. Ferguson, that had established the doctrine of “separate but equal.” Judge Roberts acknowledged that Brown was a groundbreaking case but said it did not amount to “changing the strike zone” because the court had relied on a later precedent, a 1950 case involving the University of Texas Law School establishing that separate-but-equal was an unattainable standard in state-supported higher education. The Brown ruling, Judge Roberts explained, was not a departure from established law so much as a return to it. Might one assume as well that the justices were not “infected” by a belief that segregation was ugly and wrong?

It is likely that in invoking the umpire metaphor, Chief Justice Roberts was consciously oversimplifying his judicial philosophy. He also said that “we all bring our life experiences to the bench.” The black robes represent the fact that justices are not supposed to act as individuals, he said. They are “supposed to be doing their best” to interpret the Constitution not according to their own preferences but by the rule of law, he said, leaving the question open as to whether that is possible. “That is the ideal,” he said.

In any case, the overlapping issues of a justice’s personal beliefs and judicial activism are almost certain to be raised this week, quite possibly by Senator Sessions, who now represents the minority party on the Judiciary Committee. Judge Sotomayor’s public statements about the kind of empathy she brings to the bench as a Latina have already elicited objections to what some view as an admitted bias. And that position was fanned by the Supreme Court’s recent reversal of the appellate court decision she joined that nullified the results of a firefighters’ exam in New Haven because a disproportionate number of minority candidates failed it.

“She certainly has a distinguished career,” Senator John Cornyn, a Texas Republican on the committee, said last month about Judge Sotomayor. “The real question is how she views her role as a judge: whether it is to advance causes or groups or whether it is to call balls and strikes.”

For their part, umpires recognize the similarities between themselves and judges. But they make distinctions readily, the most prominent being that unlike judges, umpires don’t deliberate.

“Umpires are eyewitnesses,” said Jim Evans, a major league umpire from 1972 to 1999 who now runs a school for umpires in Florida. “As the umpire you are the eyewitness and the judge. You make your decision based on your own reportage.”

Sure, umpires call ’em as they see ’em, and judges learn about everything from interested parties; they call ’em as they hear ’em. In a 2007 case, however, Scott v. Harris, the justices played umpire and ruled on the basis of what they saw. The case involved a motorist, Victor Harris, who was fleeing the police and was rendered quadriplegic after a police car rammed him to put an end to a high-speed chase. After viewing a videotape of the chase, the court ruled 8-1 that Harris was not entitled to sue on the basis of his Fourth Amendment protection against unreasonable search and seizure. “No reasonable juror,” Justice Antonin Scalia wrote for the majority, could fail to see the deadly risk to the public posed by Mr. Harris’s flight. And rather than publish a rebuttal of the minority opinion of Justice John Paul Stevens, the court chose instead a unique response; it posted the videotape on its Web site.

“We are happy to allow the videotape to speak for itself,” Justice Scalia wrote.

A subsequent study by Dan M. Kahan, David A. Hoffman and Donald Braman of what 1,350 people saw in the video yielded startling results. “Whites and African- Americans, high-wage earners and low-wage earners, Northeasterners and Southerners and Westerners, liberals and conservatives, Republicans and Democrats — varied significantly in their perceptions of the risk that Harris posed,” they wrote in the Harvard Law Review in January.

So what is the umpire’s objective judgment here? Where is the foul line?

Another difference between umpires and Supreme Court justices is that umpires can be reversed. Perhaps the most famous example of this is the pine tar incident of 1983. George Brett of the Kansas City Royals hit an apparently decisive ninth-inning home run against the Yankees but was declared out by the umpires for having too much pine tar on his bat. The umpires were in strict constructionist mode; the rulebook said that the use of an illegal bat would cause the batter to be declared out and Mr. Brett had pine tar on his bat well beyond the limit of 18 inches above the handle. But the Royals protested, and the American League president upheld the protest — citing the spirit rather than the letter of the law — and the game resumed. The rule, which had been implemented in the first place to discourage a different illegality — bat corking — was rewritten to say that a bat with too much pine tar would result not in an out but in the bat’s being removed from play.

Umpires tend to be politically conservative — “Maybe we should have Latina umpires because they have more empathy, right?” Mr. Evans suggested — but the pine tar example notwithstanding, they often view their role on the field more progressively. Of course, it might just be they like exercising their authority, but in many matters — calling balls and strikes, for instance — umpires are loath to yield their personal discretion.

“It’s like the Constitution,” the umpire Gary Cederstrom said to me. “The strike zone is a living, breathing document.”

Last week, the umpire Marty Foster called the Yankees’ Derek Jeter out on a steal of third, and though it appeared he was never tagged, Mr. Jeter said Mr. Foster explained that he didn’t need to be tagged to be called out because the ball beat him to the bag. Talk about judicial activism! An uproar arose over this, but in fact, if that’s what Mr. Foster said, he was simply — if unwisely — expressing aloud a generally unspoken umpire tenet that allows for some discretion on close plays to keep managers and fans, who can clearly see throws but not tags from the dugout or the stands, from causing a ruckus.

The judge-umpire analogy, in the end, is unfair to both judges and umpires, and in the current context it’s worth remembering the 1933 eulogy that F. Scott Fitzgerald delivered for his friend Ring Lardner, whose focus on baseball — “a boy’s game, with no more possibilities in it than a boy could master,” Fitzgerald lamented — kept him from fulfilling his promise as a writer.

Baseball may be appealingly all-American, but when it comes to matters of life and death, it’s only baseball. Ω

[Bruce Weber, a reporter for the New York Times, began his career in publishing as a fiction editor at Esquire. His first piece for the Times was a profile of Raymond Carver for the Sunday magazine in 1983, and he has been on staff at the newspaper since 1986 as an editor, metro reporter, national cultural correspondent, theater columnist and theater critic, among other things. His writing about baseball includes three cover stories for the Times Magazine (for whom he has also profiled E. L. Doctorow, Martin Cruz Smith, the Harvard Admissions Department, the New York Public Library and Cher) and he has regularly contributed first-person essays and participatory features to the paper. These include accounts of several bicycle journeys (from Hanoi to Ho Chi Minh City and from San Francisco to New York City, among them); of a walk the length of Broadway, from Yonkers to the Battery; of canoeing down the Hudson; of skating on all of New York City's skating rinks and of batting in all of New York City's batting cages. Weber’s latest book, As They See ’Em: A Fan’s Travels in the Land of Umpires, was published in March 2009.]

Copyright © 2009 The New York Times Company

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Copyright © 2009 Sapper's (Fair & Balanced) Rants & Raves

Today's White Plight: Aflame With Grievances And Awash In Self-Pity

At the recent Tea Party events here in Texas during the 4^th of July weekend, aggrieved whites gathered to announce they were mad as Hell and weren't going to take it any more. White privilege is under attack, by their lights, as never before. During that weekend, The Barraquitter annointed herself as the High Priestess of White Privilege and the yahoos have been howling at the moon ever since. Today, The Butcher (Frank Rich, in an earlier time as The Times drama critic, was known at "The Butcher On Broadway.") dices and slices The Barraquitter and her acolytes. If this is (fair & balanced) slaughter on Eighth Avenue, so be it.

[x NY Fishwrap]

Copyright © 2009 Barry Blitt

She Broke The G.O.P. And Now She Owns It

By Frank Rich

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alaska america american chelsea clinton conservative constituency convention critics emotion far fox hillary house john journal judge keep levin liberal likely media nation nonfiction nowhere obama palin palinists party percent political powerful president real really reason republicans resentment responsibilities sharpton sotomayor standard standing star state strange told week white yes

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Sarah Palin and Al Sharpton don’t ordinarily have much in common, but they achieved a rare harmonic convergence at Michael Jackson’s memorial service. When Sharpton told the singer’s children it was their daddy’s adversaries, not their daddy, who were “strange,” he was channeling the pugnacious argument the Alaska governor had made the week before. There was nothing strange about her decision to quit in midterm, Palin told America. What’s strange — or “insane,” in her lingo — are the critics who dare question her erratic behavior on the national stage.

Sharpton’s bashing of Jackson’s naysayers received the biggest ovation of the entire show. Palin’s combative resignation soliloquy, though much mocked by prognosticators of all political persuasions, has an equally vociferous and more powerful constituency. In the aftermath of her decision to drop out and cash in, Palin’s standing in the G.O.P. actually rose in the USA Today/Gallup poll. No less than 71 percent of Republicans said they would vote for her for president. That overwhelming majority isn’t just the “base” of the Republican Party that liberals and conservatives alike tend to ghettoize as a rump backwater minority. It is the party, or pretty much what remains of it in the Barack Obama era.

That’s why Palin won’t go gently into the good night, much as some Republicans in Washington might wish. She is not just the party’s biggest star and most charismatic television performer; she is its only star and charismatic performer. Most important, she stands for a genuine movement: a dwindling white nonurban America that is aflame with grievances and awash in self-pity as the country hurtles into the 21st century and leaves it behind. Palin gives this movement a major party brand and political plausibility that its open-throated media auxiliary, exemplified by Glenn Beck, cannot. She loves the spotlight, can raise millions of dollars and has no discernible reason to go fishing now except for self-promotional photo ops.

The essence of Palinism is emotional, not ideological. Yes, she is of the religious right, even if she winks literally and figuratively at her own daughter’s flagrant disregard of abstinence and marriage. But family-values politics, now more devalued than the dollar by the philandering of ostentatiously Christian Republican politicians, can only take her so far. The real wave she’s riding is a loud, resonant surge of resentment and victimization that’s larger than issues like abortion and gay civil rights.

That resentment is in part about race, of course. When Palin referred to Alaska as “a microcosm of America” during the 2008 campaign, it was in defiance of the statistical reality that her state’s tiny black and Hispanic populations are unrepresentative of her nation. She stood for the “real America,” she insisted, and the identity of the unreal America didn’t have to be stated explicitly for audiences to catch her drift. Her convention speech’s signature line was a deftly coded putdown of her presumably shiftless big-city opponent: “I guess a small-town mayor is sort of like a community organizer, except that you have actual responsibilities.” (Funny how this wisdom has been forgotten by her supporters now that she has abandoned her own actual responsibilities in public office.)

The latest flashpoint for this kind of animus is the near-certain elevation to the Supreme Court of Sonia Sotomayor, whose Senate confirmation hearings arrive this week. Prominent Palinists were fast to demean Sotomayor as a dim-witted affirmative-action baby. Fred Barnes of The Weekly Standard, the Palinist hymnal, labeled Sotomayor “not the smartest” and suggested that Princeton awards academic honors on a curve. Karl Rove said, “I’m not really certain how intellectually strong she would be.” Those maligning the long and accomplished career of an Ivy League-educated judge do believe in affirmative-action — but only for white people like Palin, whom they boosted for vice president despite her minimal achievements and knowledge of policy, the written word or even geography.

The politics of resentment are impervious to facts. Palinists regard their star as an icon of working-class America even though the Palins’ combined reported income ($211,000) puts them in the top 3.6 percent of American households. They see her as a champion of conservative fiscal principles even though she said yes to the Bridge to Nowhere and presided over a state that ranks No.1 in federal pork.

Nowhere is the power of resentment to trump reason more flagrantly illustrated than in the incessant complaint by Palin and her troops that she is victimized by a double standard in the “mainstream media.” In truth, the commentators at ABC, NBC and CNN — often the same ones who judged Michelle Obama a drag on her husband — all tried to outdo each other in praise for Palin when she emerged at the Republican convention 10 months ago. Even now, the so-called mainstream media can grade Palin on a curve: at MSNBC’s “Morning Joe” last week, Palin’s self-proclaimed representation of the “real America” was accepted as a given, as if white rural America actually still was the nation’s baseline.

The Palinists’ bogus beefs about double standards reached farcical proportions at Fox News on the sleepy pre-Fourth Friday afternoon when word of her abdication hit the East. The fill-in anchor demanded that his token Democratic stooge name another female politician who had suffered such “disgraceful attacks” as Palin. When the obvious answer arrived — Hillary Clinton — the Fox host angrily protested that Clinton had never been attacked in “a sexual way” or “about her children.”

Americans have short memories, but it’s hardly ancient history that conservative magazines portrayed Hillary Clinton as both a dominatrix cracking a whip and a broomstick-riding witch. Or that Rush Limbaugh held up a picture of Chelsea Clinton on television to identify the “White House dog.” Or that Palin’s running mate, John McCain, told a sexual joke linking Hillary and Chelsea and Janet Reno. Yet the same conservative commentariat that vilified both Clintons 24/7 now whines that Palin is receiving “the kind of mauling” that the media “always reserve for conservative Republicans.” So said The Wall Street Journal editorial page last week. You’d never guess that The Journal had published six innuendo-laden books on real and imagined Clinton scandals, or that the Clintons had been a leading target of both Letterman and Leno monologues, not to mention many liberal editorial pages (including that of The Times), for much of a decade.

Those Republicans who have not drunk the Palin Kool-Aid are apocalyptic for good reason. She could well be their last presidential candidate standing. Such would-be competitors as Mark Sanford, John Ensign and Newt Gingrich are too carnally compromised for the un-Clinton party. Mike Huckabee is Palin-lite. Tim Pawlenty, Bobby Jindal — really? That leaves the charisma-challenged Mitt Romney, precisely the kind of card-carrying Ivy League elitist Palinists loathe, no matter how hard he tries to cosmetically alter his history as a socially liberal fat-cat banker. Palin would crush him like a bug. She has the Teflon-coated stature among Republicans that Romney can only fantasize about.

Were Palin actually to secure the 2012 nomination, the result would be a fiasco for the G.O.P. akin to Goldwater 1964, as the most relentless conservative Palin critic, David Frum, has predicted. Or would it? No one thought Richard Nixon — a far less personable commodity than Palin — would come back either after his sour-grapes “last press conference” of 1962. But Democratic divisions and failures gave him his opportunity in 1968. With unemployment approaching 10 percent and a seemingly bottomless war in Afghanistan, you never know, as Palin likes to say, what doors might open.

It’s more likely that she will never get anywhere near the White House, and not just because of her own limitations. The Palinist “real America” is demographically doomed to keep shrinking. But the emotion it represents is disproportionately powerful for its numbers. It’s an anger that Palin enjoyed stoking during her “palling around with terrorists” crusade against Obama on the campaign trail. It’s an anger that’s curdled into self-martyrdom since Inauguration Day.

Its voice can be found in the postings at a Web site maintained by the fans of Mark Levin, the Obama hater who is, at this writing, the No.2 best-selling hardcover nonfiction writer in America. (Glenn Beck is No.1 in paperback nonfiction.) Politico surveyed them last week. “Bottomline, do you know of any way we can remove these idiots before this country goes down the crapper?” wrote one Levin fan. “I WILL HELP!!! Should I buy a gun?” Another called for a new American revolution, promising “There will be blood.”

These are the cries of a constituency that feels disenfranchised — by the powerful and the well-educated who gamed the housing bubble, by a news media it keeps being told is hateful, by the immigrants who have taken some of their jobs, by the African-American who has ended a white monopoly on the White House. Palin is their born avatar. She puts a happy, sexy face on ugly emotions, and she can solidify her followers’ hold on a G.O.P. that has no leaders with the guts or alternative vision to stand up to them or to her.

For a week now, critics in both parties have had a blast railing at Palin. It’s good sport. But just as the media muttering about those unseemly “controversies” rallied the fans of the King of Pop, so are Palin’s political obituaries likely to jump-start her lucrative afterlife. Ω

[Frank Rich is an op-ed columnist for The New York Times who writes a weekly 1500-word essay on the intersection of culture and news. Rich has been at the paper since 1980. His columns and articles for the Week in Review, the Arts & Leisure section and the Magazine draw from his background as a theater critic (known as "The Butcher On Broadway") and observer of art, entertainment and politics. Before joining The Times, Rich was a film critic at Time magazine, the New York Post, and New Times magazine. He was a founding editor of the Richmond (Va.) Mercury, a weekly newspaper, in the early 1970s. Rich is the author of a childhood memoir, Ghost Light (2000), a collection of drama reviews, Hot Seat: Theater Criticism for The New York Times, 1980-1993 (1998), and The Theatre Art of Boris Aronson (with Lisa Aronson, 1987). Rich is a graduate of the Washington, DC public schools. He earned a BA degree in American History and Literature from Harvard College in 1971.]

Copyright © 2009 The New York Times Company

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