About That Umpire Analogy…

In the charade labeled “hearings” on Brett Kavanaugh’s nomination to the Supreme Court, we have once again been treated to the facile comparison of judging and “umpiring,” first used to great effect by now-Chief Justice John Roberts.

There has been plenty to criticize about these hearings, even if the unconscionable and un-American treatment of Merrick Garland isn’t still sticking in your craw. Like so much of federal governance, which has abandoned even the pretense of concern for the common good, the process of selecting a Supreme Court Justice has devolved from a consideration of the candidate’s character and qualifications into a battle for partisan dominance.

Even before the late-breaking allegations that he tried to rape a young woman while in high school–allegations that appear more credible by the day (why else would Senator Grassley have previously secured and pocketed that letter by 65 women saying Kavanaugh was a nice guy), and considerable evidence that he had perjured himself during his prior confirmation hearings, Kavanaugh had emerged as a (very accomplished, clearly intelligent) partisan hack.

We shouldn’t be surprised by either the extreme partisanship or the lack of candor; that’s why he was nominated.

His unwillingness to really engage Senators’ questions, and his pat (non)responses have been par for the course, as the process has become more superficial over the years. The “umpire” analogy is of a piece with the smug responses we’ve come to expect, but my cousin–a doctor with a blog of his own that I quote from time to time–had a perfect reaction to that bit of sophistry:

I usually devote time to exposing health frauds and quackery. But now, I can’t resist bigger prey, namely the U.S. Supreme Court. Recently candidate judge Brett Kavanaugh stated that he likened his Judicial position to that of an “umpire,” an opinion previously attributed also to Chief Justice Roberts during his early hearings in 2005. This assertion, while seeming to express purity and impartiality, is patently false!Why? Because we can first use the example of a real umpire, who works individually in a baseball game and makes binary decisions such as “safe” or “out.” Although usually easily decided, borderline decisions can be resolved by instant video replay, again observed by a single person, usually the umpire himself.

Now let’s extend this analogy to the supreme court: Using the baseball analogy, we place nine justices, or “umpires,” near first base, in order to judge outcomes. A ground ball results in a close call at this base, and our justices then, after thorough discussion, decide that, by a vote of 5 to 4, the runner is out. But the minority of 4 think, possibly correctly, that he is safe. Sound ridiculous? It is!

Here is what makes this scenario so ridiculous. Out of necessity, judges make complex decisions that are subjective, vulnerable to individual bias, education and background, usually require more than one person, and are subject to later reversal by other courts or, in the case of the Supreme Court, even the same court in later years. Examples of reversals are manifold and include such issues as legitimacy of slavery, equal access to public restaurants and schools, etc., etc. Does that description sound even remotely like an umpire? I think not!

I’d say that’s an excellent diagnosis!


  1. Our capitalist culture is all about winning and losing. When the rules are ‘win at any cost’ what can you expect?

    Umpires have more credibility than a lawyer in my book since they have to be objective. There is nothing objective about Kavanaugh. We know how he’ll rule before he even takes his seat. His rulings show his stripes very well (at least from those documents released to the public).

    But let’s be honest, who trusts either side in 2018? What evidence do you have to support your position?

    The Justice Dems and Dem Socialists aren’t accepting corporate money. Why is that?

    So their votes can’t be bought and they can advocate for the people–not those with economic power. Let’s face it, the decisions rising up to the Supreme Court have financial backers or lawyers wouldn’t be involved.

    How can any decision be made for the good of the people when finance dictates the teams and the players and the stadium and the umpires, etc.?

    When the system is rigged…everything else is pure theatre. Propaganda.

  2. Todd,

    Yes. The cozying up of the late Justice Scalia with corporate/banking America speaks directly to your point. Mitch McConnell’s disgraceful, un-Constitutional behavior regarding Merrick Garland underscores his relationship with the Koch brothers over a couple decades. The Koch-sponsored star chamber of billionaires on the very day Obama was inaugurated called for absolute resistance and active bribery of Republicans to prevent ANY initiatives from benefitting the people during his time. McConnell’s naked corruption is the basis for this whole fiasco regarding Kavanaugh. Ironically, he counseled Trump against picking him. But since the orange hairball needs a protector on the SCOTUS when his fat is in the fire, he followed his corrupt view of things and picked Kavanaugh anyway.

    This is pure third-world, banana republic behavior. Will we ever recover from it?

  3. Todd,

    You underestimate the ACLU. My great fear is that they will be put in an untenable position with a fifth partisan hack on the court. It’s too bad the founders didn’t require a two thirds majority vote for a Supreme Court Justice.


  4. Lady Justice is no longer blind; but the women on SCOTUS appear to be near blind when making court decisions by casting partisanship behind and reaching decisions on evidence presented to them. The men who are not only right-wing appointees, but also from patriarchal religions, have carried their partisan and religious “values” with them into the highest court in the land. Then there is Clarence Thomas whose sexual morals were at issue on an adult level and the decision, made by an all-male panel, went against the woman victim. It was difficult watching the rerun of that “hearing”; especially seeing the Ted Kennedy of that time period on that panel to judge anyone else’s sexual morals. No surprise regarding his vote.

    Kavanaugh’s victim’s late-in-the-game accusation (and this “hearing” IS but a game) comes from his teenage past; a time when “boys will be boys” was not only acceptable, but ruled. regarding their sexual escapades. If, what Ms. Ford says is true, he was probably too drunk to remember – but NOT too drunk to attempt a rape – and his friend was probably in the same state of drunkenness. This needs to be investigated to see if others lurk in his past, afraid to come out. Why would letters from 65 women, praising Kavanaugh, be needed or used in the hearing for this SCOTUS appointment? Were such “recommendations” found, sought or needed in the appointment of other male appointees; other than Thomas? Were letters from men part of the hearings to seat the woman on SCOTUS? Are we looking at the old double-standard at the Judicial level of the Constitution?


  5. I, for one, am tired of watching all of this nonsense. November 6th cannot come soon enough. Politicians will not work this thing out to the benefit of the citizenry, as both sides are clearly doing the bidding of those who bought them. No, the answer must come from the people!

  6. The DEVIANT, OLIGARCHIC STRUCTURE is going to have to be DEMOLISHED, one way or the other. The sooner the better. It’s not going to be fun and games, in any event. Hopefully, no one gets hurt.

  7. Hooray for the ACLU which has been fighting
    * discrimination based on religion and national origin and
    * separation of immigrant parents from their children and
    * denial of asylum to those fleeing their homeland for their safety and
    * voter suppression
    * discrimination against LGBTQ law-abiding citizens
    * for equal opportunity, equal protection of the laws, and due process for everyone.

    But the ACLU and all our rights and protections under the constitution are only as strong as our system of justice. This President and Congress (and the Federalist Society) have been stacking lower courts and the Supreme Court with those who have autocratic rather than democratic sympathies. That’s why this election and this appointment of a Supreme Court Justice is SOOOOOOOO important. These actions have extreme consequences.

    Register; vote; and give to the ACLU. https://www.aclu-in.org

  8. All I can say is: We better do MORE than just vote and give to the ACLU. However, after three years, I understand that probably less than a handful, on this blog, would agree with me.

  9. A note on background per WIKI – Kavanaugh was raised in Bethesda, Maryland. As a teenager he attended Georgetown Preparatory School, where he was two years senior to future U.S. Supreme Court Justice Neil Gorsuch.

    Georgetown Preparatory School is a Jesuit university-preparatory, boarding and day school for boys in grades 9–12, school in North Bethesda, Maryland. It is among the most selective prep schools.
    What are the odds that a Supreme Court Justice Neil Gorsuch and a nominee for the Supreme Court would both attend the same High School???

    Bethesda, Maryland is per WIKI > 85.86% White, 2.67% Black or African American, 0.17% Native American, 7.92% Asian, 0.05% Pacific Islander, 1.23% from other races, and 2.11% from two or more races. 5.43% of the population were Hispanic or Latino of any race.

    Further info on Bethesda > The average price of a four bedroom, two bath home in Bethesda in 2010 was $806,817 (which ranks it as the twentieth most expensive community in America.
    Bethesda is a very wealthy and well-educated area. According to the 2000 Census, Bethesda was the best-educated city in the United States of America with a population of 50,000 or more. 79% of residents 25 or older have bachelor’s degrees and 49% have graduate or professional degrees. According to a 2007 estimate,[12] the median income for a household in the CDP was $117,723, and the median income for a family was $168,385.
    Kavanaugh led a life of insularity and privilege, from expensive private prep schools to the Ivy League (Yale and Yale Law School).

    Christine Blasey Ford, the woman who has accused supreme court nominee Brett Kavanaugh of sexual assault, wants the FBI to investigate her allegation as a “first step” before she testifies to the Senate judiciary committee – a demand Republicans seem unwilling to meet.

    Republican Chuck Grassley, the committee chair, “Nothing the FBI or any other investigator does would have any bearing on what Dr Ford tells the committee, so there is no reason for delay.” https://www.theguardian.com/us-news/2018/sep/18/christine-blasey-ford-brett-kavanaugh-sexual-assault-claim
    Grassley, is parsing words here. An FBI Investigation could prove which version of the events is correct or neither version could be corroborated. Christine Blasey Ford by going public has demonstrated extreme courage. Courage something the Republican Senators and various apologists for President Agent Orange lack.

  10. grassly has a problem,evidently,theres absolutly,no other candidates to be in line… why not? if trump,was the socalled one who picked kavenaugh,(like im sure trump has a ongoing relationship with any judge) who really picked kavenaugh? and why? if our journalists are incline to write about such matters,ive seen little in the way how this nerd got picked. we all can just say,its a reliable knowlege that the right side of the aisle picked him,but we still havent asked the republican mob,in a public forum why? and we should have had a equal amount of the left,to ask why,at the same time. before this circus began. again, we see how the fundamentals have disappeared,and congress now just ambushes anything they want.. lets face it, its going to happen,and theres the signatures,of those who voted for it… lest we forget,we the people need to again, be incontrol of this nation as a whole,and get off our ass,and demand change. vote,like it really means something,and help someone else to vote,just one more,vote,and bring them to the poll,and then have a chat,and coffee,and make a alliance to be there again… thanks…

  11. Kavanaugh was selected because he was marginally qualified and had formed a bias towards the concept that a sitting President is not required to be law abiding. In other words the chief executive of the country, who’s responsibility is, most generally speaking, to enforce our laws is exempt from following them.

    Democrats have decided, wisely in my opinion, that the only way to fight partisanship is to be partisan. That’s what the country has degenerated into. It’s the only game in town and this is a critical decision for the future of the country and Mitch McConnell has already established the precedent of anything goes that helps your side. It helps his side to have a President above our law.

    This is current reality. It may be permanent reality. The only chance there is to save our democracy is to delay this critical Senate vote until a new Congress can be seated in which a majority of members don’t believe a President is above our laws, and render our current Chief Executive impotent in anything which representatives of we the people have to approve.

    Once we do that and the smoke clears we can then over time repair our endangered liberal democracy back to the standards of decorum that had been tradition until now.

  12. Nancy and Monotonous:

    Well done.

    I would emend Nancy’s statement slightly, changing “system of justice” to “legal system.” The goal of our legal system is not justice, but winning. Justice occurs occasionally and serendipitously but not consistently.

    Maywin (and others if interested)

    Here is a link to my blog as promised. Comments are welcome.


    I don’t know if you will be able to follow the link from here or whether you will have to copy and paste it in your address bar. Thanks for your interest.

  13. Simmering beneath most of the commentaries today lurks the necessity for public financing of elections, without which we proles are mere money-making drones for the Kochs, Mercers and their ilk. Until candidates for office answer only to those humans who elected them without regard to bribes (aka campaign contributions), we the people are the owned but, so far, Citizens United does not give the vote per se to corporations though it equates money with speech, a worrisome finding available for expansion by the right, an expansion that might succeed with the likes of Gorsuch and Kavanaugh added to the bench.

    Peter today aptly mentions repair of our liberal democracy and a return to decorum and he is right to do so, but first we have to stem the chaos. His advice reminded me of the old saw from the street to the effect that “When you are up to your — in alligators, it’s hard to remember that you came here to drain the swamp.” We are now “up to” and the Kavanaughs, tariffs, presidential orders to make intelligence from fisa courts public etc. are the gators, and must be dealt with sternly before we can hope to find stability and decorum. We cannot rebuild our house when it is still burning, so let’s put out the fire this November 6, after which we can then go for public financing of elections and other such democracy-enhancing initiatives.

  14. Wray; thank you for posting your blog site. I am from a union family; both the men and the women. I also remember before the unions were organized; in the 1940’s my father picketed in the severest of weather and worked when seriously ill. He had to take 2 city buses to get to Chevrolet Commercial Body Plant on White River Parkway. During WWII they were a defense plant, manufacturing airplane body parts if I remember correctly. Suffering the a spreading mastoid infection with pain so severe he couldn’t eat or sleep…but he took those 2 buses to work. He looked so bad that one of the neighbors saw him on the bus barely conscious; thought he was dead, he refused to miss work so we could eat. Those days were in the past until recent years and Republican destruction of unions. Dad was still a member of UAW Local 23 here in Indianapolis when he died at age 86. How much of today’s declining income levels for middle Americans and price controls are due to the lack of unions?


  15. Thank you JoAnn.

    The systematic destruction of unions has crippled us economically and politically and until the union movement revives we will remain weak. Men (and women!) like your dad were the backbone of unions. Today few union members are aware of how hard they fought for the benefits they have. What is worse, they don’t have the courage to stand and fight as those benefits are taken away.

    Walter Reuther said, “There’s a direct relationship between the ballot box and the bread box, and what the union fights for and wins at the bargaining table can be taken away in the legislative halls.”

    We have to regain control politically–inside our workplaces and outside in the general population. VOTE BLUE!

  16. As I mentioned above Gorusch and Kavanaugh, both attended the same H.S., Georgetown Preparatory School a Jesuit university-preparatory, boarding and day school for boys.

    Humans have selected for genetic modification plants and animals, here we have with Gorusch and Kavanaugh – selection based upon class and religion. It has a ring of the old British Empire System, where advancement is based upon coming from the “right family” and attending the “right schools”.

    I suspect the hand of Pastor Pence in both of these selections for SCOTUS. Coming from the Jesuits in the cloistered atmosphere of a wealthy DC Suburb (Bethesda) the Liberation theology, religious movement arising in late 20th-century Roman Catholicism and centered in Latin America was not well received. The Liberation theology sought to apply religious faith by aiding the poor and oppressed through involvement in political and civic affairs.

    Organized religion for the most part with few exceptions has avoided any criticism of the 1%.

    Hopefully, the Democrats as a party will vote NO on Kavanaugh.

  17. Gerald, you and I are well aligned. Of course at some level of detail right and wrong become cloudy but problem solvers then swithrington to what are our goals (stated clearly on our Constitution) and what are practical solution towards getting back on track to striving for them.

  18. I found this NBC News item on AOL news listing. This woman appears to live in Mexico City and remembers the incident involving Kavanaugh. Will others come forward from those private schools for the wealthy and advantaged who moved on to high level positions?

    WASHINGTON — A former schoolmate of Brett Kavanaugh’s accuser wrote a Facebook post saying she recalls hearing about the alleged assault incident involving the future Supreme Court nominee, though she says she has no first-hand information to corroborate the accuser’s claims.

    “Christine Blasey Ford was a year or so behind me,” wrote the woman, Cristina Miranda King, who now works as a performing arts curator in Mexico City. “I did not know her personally but I remember her. This incident did happen.”

    She added, “Many of us heard a buzz about it indirectly with few specific details. However Christine’s vivid recollection should be more than enough for us to truly, deeply know that the accusation is true.”

  19. When I first heard that Kavanaugh used the umpire analogy to describe how he operates on the bench, it occurred to me that when corporations and other wealthy entities step up to the plate before the US Supreme Court, the strike zone gets significantly smaller. Spawned by the rich and well-to-do, and groomed like little leaguers eager to please their managers, many of our Supreme Court “umpires” know exactly how to play ball. Kananaugh would be no exception.

Comments are closed.