Within hours of the news that President Barack Obama had selected Sonia Sotomayor to replace David H. Souter on the United States Supreme Court, Republican lawmakers were tripping over themselves to use the now famous "umpire analogy" to describe what a good jurist ought to do on the bench.
Sen. Sam Brownback, R-Kan., a Judiciary Committee member who voted against Judge Sotomayor before and will almost certainly vote against her again, declared that in his view "the role of a justice is as an umpire, not a policy maker." And Sen. Jeff Sessions, R-Ala., now the ranking member of the Committee, declared that "we must determine if Ms. Sotomayor understands that the proper role of a judge is to act as a neutral umpire of the law, calling balls and strikes fairly without regard to one's own personal preferences or political views."
Nice sound bite. Everyone likes baseball, right? But let's look at little bit more closely at how the Umpire Roberts has undertaken his solemn duty to call balls and strikes. As my colleague Jeffrey Toobin first pointed out in a recent issue of The New Yorker magazine:
In every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.
In other words, Umpire Roberts always calls strikes against one team and always calls balls against the other team. No real umpire would be permitted to continue behind the plate in such circumstances. It's time to drop the silly analogy or (since that won't happen) time at least to recognize that Judge Sotomayor's record, on the 2nd U.S. Circuit Court of Appeals, clearly shows a pattern of decisions that fall across the legal spectrum, from "liberal" to "conservative" to the thousands of spots in between. She's been an umpire, in other words, while the Chief Justice has been precisely the conservative tribune his backers hoped he would be.
Conservative critics of Judge Sotomayor contrast the laudatory role of judicial "umpire" with the sinister role of judicial "policy maker" and then cite the judge's comments at an academic panel four years ago to help establish their point. She said, laughing and to laughter, that the "court of appeals is where policy is made…. And I know, and I know, that this is on tape, and I should never say that. Because we don't 'make' law, I know." All Judge Sotomayor was guilty of here was telling the truth, of being candid about a practice that no one in Washington really wants to acknowledge or concede.
It is no secret within the legal world that judges of all stripes - liberals, conservatives, you name it - "make policy" when they interpret statutes and constitutional language. They do so—they are forced to do so—because the lawmakers who draft and enact those statutes have to compromise on the legislation of laws to gain agreement with their political adversaries. These compromises generate words like "reasonable" and other ambiguous, mealy-mouthed standards that judges then inevitably have to interpret when the statute gets challenged by one side or the other.
So some of the very same lawmakers who routinely punt to the federal courts on the toughest policy choices now are planning to pillory Sotomayor (and by implication all of the other judges on the bench) for having the courage to actually choose between competing policies masked by intentionally vague language. Think I'm wrong? Read a good history book about how the Constitution itself came about—and how many of the thorniest issues of those days were left for future generations. Same as it ever was.
A nod to this reality is all that Judge Sotomayor means when she talks about how federal appeals courts sometimes make policy choices before passing the dispute on up to the Supreme Court to make final policy choices (which the Congress then in turn is free to "overturn" by passing more specific legislation). To argue otherwise is to give lawmakers, both now and in 1787, far more credit for far more courage and wisdom than they deserve. Those pols would like you to believe that they always give clear instructions to judges in the laws they write—nothing could be further from the truth.
Which brings us, finally, to the silliest phrase of the silly season—"judicial activism." Here I will simply defer to former Justice Sandra Day O'Connor, the first woman on the Supreme Court, the Reagan nominee and soul-mate of the late Chief Justice of the United States William H. Rehnquist. Upon leaving the Court, Justice O'Connor immediately became a acting. To judge is to act. Liberals labeled Rehnquist a "judicial activist" of the right, which again ought to tell us how little meaning the phrase actually has. Sure, there is a role in the Sotomayor discussion about judges who are perceived to go beyond the pale (like liberals did when they invented a privacy right in the "penumbras" of the Bill of Rights). But the current nominee is not one of those judges, not by a long-shot. If the confirmation of Judge Sotomayor is the fait accompli it now seems to be, if it's clearly her lifetime seat to lose, we should at least bring some level of meaning to the endeavor upon which we are now to embark. So let's quickly dispense with the code words and have a real discussion, a national debate, on what it does and does not mean to be a judge. Otherwise, we'll all be back in the same spot a few years from now talking nonsense about umpires on the Supreme Court.