The Umpire, the Wise Latina, and the Cabinetmaker

scraper_oblique_rearThe confirmation hearings for Judge Sonia Sotomayor are over, and the reviews have been overwhelmingly negative.  The public tuned in expecting a discussion of the nominee’s qualifications and a debate on the role of the Supreme Court in our constitutional system.  What they got, instead, was a battle of metaphors.

Republican Senators on the Judiciary Committee compared the ideal Supreme Court justice to a baseball umpire.  An umpire confines himself to calling balls and strikes without allowing his preference for one team or the other to influence the performance of his duties.  The umpire metaphor is designed to support the view that judges apply the law objectively and even handedly.

While the umpire metaphor expresses a commendable aspiration, one can’t help but wonder whether this is an attainable goal. 

Even on its own terms, the Umpire metaphor does not seem to accord with human behavior.  Baseball umpires are notorious for having different strike zones, and for applying strike zones inconsistently, in ways that affect the outcome of games.  There have been persistent calls for Major League Baseball to use machines that would call balls and strikes without error, much like the League adopted instant replay to correct mistaken calls by the officials.  If umpires are not perfect, is it fair to demand perfection from judges.   

 In fact, it is a good thing that judges do not all act alike, as if they were machines, and that our system of justice provides room for individualized discretion.  It is in our discretion that we express our humanity.  Judge Jose Cabranes (the “good Hispanic” on the Second Circuit, according to the conservative critique of the Ricci firefighters case) defended the individuality of the judging process in his 1998 book Fear of Judging.  He was writing in the context of the federal Sentencing Guidelines, and their attempt to limit the sentencing discretion of judges:

  “[W]e should start with the simple recognition that the Sentencing Guidelines are based on a fundamental misconception about the administration of justice: the belief that just outcomes can be defined by a comprehensive code applicable in all circumstances, a code that yields a quantitative measure of justice more easily generated by a computer than a human being.  We must recognize, in other words, that no system of formal rules can fully capture our intuitions about what justice requires.  The federal Sentencing Guidelines of today are based on a fear of judging: they attempt to repress the exercise of informed discretion by judges.  Instead, in the typical case, the judge is supposed to perform an automaton’s function by mechanistically applying stark formulae set by a distant administrator.  The unhappy consequences of such a system are borne by all participants in the sentencing process, including the judges themselves.  As one federal judge has put it, the Guidelines ‘tend to deaden the sense that a judge must treat each defendant as a unique human being . . . . [I]t is quite possible that we judges will cease to aspire to the highest traditions of humanity and personal responsibility that characterize our office.”  [p. 169]

 The Umpire metaphor should be rejected for the same reason: it is an attempt to appeal to the fear of judging.  The metaphor is designed to undermine any exercise of discretion by judges in the mind of the general public.  Most significantly, when a federal judge exercises their constitutional power to “say what the law is,” the general public will be primed to respond with resentment towards a judge who failed to act in accord with their expectations — despite the fact that these expectations were unrealistic in the first place.

 The Sotomayor hearings contained a second metaphor that was used to describe a Supreme Court Justice who is not objective.  The Wise Latina is a judge who incorporates her life experiences into her rulings from the bench, and who views the law through the lens of her own prejudices and beliefs.  The metaphor of the Wise Latina was created by Republican Senators in order to represent someone who possesses racial or gender grievances, who holds an ethno-centric world view, and who will choose winners and losers in the courtroom in order to redress past grievances and advance that view.  It was put forth in order to provide a negative contrast to the Umpire metaphor.

 The Wise Latina metaphor is actually a more honest description of what judges do than the Umpire metaphor.  Life experiences do influence how judges view facts and precedent.  However, the Wise Latina metaphor tells us nothing about how a judge should use their life experiences to inform their judgment whilst avoiding the danger of individualized bias.  Judge Sotomayor’s only sin was in admitting that as a federal judge she possesses a range of discretion that many people fear, and that in the case of life tenure judges this discretion is subject only to self-policing.  During the confirmation hearings, Senators Sessions and Kyl tried to argue that the Wise Latina metaphor provided a basis for predicting that Judge Sotomayor would favor ethnic minorities and women in her rulings on the Supreme Court, but they never made the causal connection between their descriptive metaphor and her future propensities.

 Not surprisingly, in her testimony Judge Sotomayor chose to embrace a third metaphor — one that is distinct from either the Umpire or the Wise Latina.  In describing her approach to the law, she put forth a vision of a Supreme Court Justice that I will call the Cabinetmaker.  As Judge Sotomayor described the job, a Supreme Court Justice is like a craftsman (or craftswoman) who takes the raw materials on the workbench (the particular facts of the case and the relevant precedent) and carefully joins them together into an opinion that is solidly constructed as to both form and function.  In so doing, the Cabinetmaker stays focused on the individual task at hand, and on serving the immediate needs of his customer, rather than on advancing some personal agenda to revolutionize home furniture design.  The result is a piece of furniture that reflects the cabinetmaker’s influences, but that does not substitute the cabinetmaker’s own taste for the client’s desires.

There is much to admire in the Cabinetmaker metaphor.  It demands that Supreme Court opinions adhere to an internal formal logic, and that they conform to the facts as found by the lower court and to prior precedent.  This metaphor therefore provides a prescriptive guide to judging.  It holds judges to an objective set of rules and it evaluates the judge’s performance on the basis of how closely they follow those rules.  Personal bias cannot be eliminated, but personal bias is not likely to overcome the formal rules of logic or to force a syllogism to arrive at a particular result.  Judges are more like craftsmen, akin to a cabinetmaker who is highly regarded for the fine construction of his furniture.  Poor craftsmanship will be obvious to most objective observers (my students will no doubt recall my in-class description of Roe v. Wade as a “wobbly three-legged stool”).

 However, despite these advantages, the Cabinetmaker metaphor is likely to prove unappealing to judicial conservatives.  The Cabinetmaker metaphor accepts the status quo, and assumes that change in legal doctrine will be slow and incremental.  It treats all precedent equally.  It incorporates the doctrine of stare decisis and calls for judges to follow precedent in all but the rarest cases.  A cabinetmaker begins each day with the expectation that they will follow the same blueprint that they applied to the last cabinet.  They do not decide one day to stop making cabinets, and become violin makers.

 Originalism has a powerful hold on the minds of judicial conservatives because it is a theory that denies the legitimacy of non-originalist precedent.  Therefore, an originalist judge considers himself justified in refusing to adhere to precedent that he views as “wrongly decided.”  Before any prescriptive model of judging is acceptable to judicial conservatives, it must provide for a means of un-doing liberal precedent.  The judge as Cabinetmaker metaphor does not do this.  Therefore, judicial conservatives will embrace the Umpire metaphor and overlook its obvious defects.

 It would be folly to read too much into these three competing metaphors.  They do not arise from any sort of critical analysis.  The Umpire metaphor had its origin in a comment by Justice Roberts during his confirmation hearings.  The raw materials from which Senate Republicans constructed the Wise Latina metaphor came from the “stump speech” that Judge Sotomayor regularly delivered to various law schools.  The Cabinetmaker metaphor was chosen and emphasized by Judge Sotomayor in order to make her less threatening to moderate Republicans and therefore more likely to sail smoothly towards confirmation.

 None of these metaphors were put forward as a closely argued, carefully considered explication of a particular judicial philosophy.  Instead, they were used as simplistic tools to convey a particular message about what judges do to the general public.  During the course of the Sotomayor hearings, the media inflated the Umpire and the Wise Latina metaphors to the point where they seemed to represent the yin and the yang of theories of judicial process.  As a result, Judge Sotomayor’s Cabinetmaker metaphor came across as evasive.  By presenting a third alternative view of judging, the Cabinetmaker metaphor was perceived as an attempt to change the subject (which it was).   

 However, before we put these metaphors back onto the shelf, to be dusted off at the next confirmation hearing, we should pause to further examine the messages that these metaphors are sending to the general public.  Scientists who study the human brain tell us that metaphors have a powerful impact on the human mind.  This is because metaphors create the internal narrative that our mind uses to understand the exterior world.  Once our mind chooses to adopt a particular narrative, that narrative becomes one of the many “stories” that our brain applies to predict outcomes.

 The recent controversy over the arrest of Harvard professor Henry Louis Gates, Jr. is illustrative.  When we human beings hear the word “policeman,” our mind immediately applies an internal narrative that creates certain expectations of how a policeman should behave (catching criminals, helping victims, acting heroically).  When our brain receives information that a particular policeman has behaved contrary to our internal narrative (i.e., by behaving rudely towards a law abiding citizen), this creates a disconnect between the fact and the narrative that our mind tries to resolve.

 If the policeman narrative has a strong hold on our brain, then the contrary information will provoke an immediate negative emotion in our mind.   This is because this particular policeman did not behave in the way that our internal narrative tells us that a policeman is supposed to behave.  In order to avoid experiencing this negative emotion, our mind may reject the contrary information (the rude behavior didn’t happen) or, in instances where the original policeman narrative has only a weak hold on our brain, replace it with a different narrative (policemen are racists).  Scientists who study the brain tell us that this process occurs immediately, and without any conscious deliberation on our part.

Therefore, the metaphors put forth during the Sotomayor hearings will greatly influence the way in which the public understands how federal judges should behave.  If the public embraces the narrative of a federal judge as an Umpire, then it will expect judges to behave in a way consistent with that narrative.  Most significantly, the public will react negatively to a judge who does not behave in a way consistent with the expectations created by their internal narrative.  I assume that we would all agree that it is dangerous to generate public discontent with the federal judiciary for performing the very role envisioned for them by the Constitution.

 As academics, we try to explain what judges do in the courtroom on the basis of reasoned inquiry.  But our academic theories stand little chance of influencing public opinion if they run counter to the public’s chosen narrative of how judge’s should behave.  Law professors ignore the influence of metaphors at our own peril.

This Post Has 6 Comments

  1. Tom Kamenick

    Wow there’s a lot here to comment on. Going to pick two things to address.

    1) Umpiring. I don’t think we (as a whole) expect perfection from umpires. We know they’re imperfect, and while we may rant and rave on calls we disagree with, most baseball fans don’t see that as a reason to go to mechanical measuring of balls and strikes. But we do expect that the umpires will be a) fair to both sides, and b) consistent with how they call things. More importantly (and something you left out), we expect them not to rewrite the rules of baseball – they can’t choose to disregard the infield fly rule because they don’t like it. That’s what we expect from judges: fairness to parties, consistency, and not making up new rules.

    2) Internal narrative on police. I find it interesting you attribute the feeling that a policeman is racist to a “weak hold” on the “original” narrative. I think the problem there is that “police are racist” IS the original narrative for a very large section of the African-American (and inner-city in general) population, such that any perceived validation of that (police arrest/stop/question a black man, regardless of provocation) triggers that protestation immediately.

  2. Daniel Suhr

    Thank you for the thoughtful post, Professor.
    Here’s my concern with the cabinetmaker analogy: it gives the cabinetmaker permission to choose the wood with which she works. Some cabinetmakers choose to build oak cabinets, others birch, others from ash.
    In the same way, the cabinetmaking justice can choose from a variety of materials when constructing a decision. She may decide to follow a super-duper precedent, further ensconcing its place in constitutional law. Alternatively, she may choose to “correct the errors in our early cases” and dispense with precedent. She may choose to put a new gloss on an old constitutional text, or to get around the text by looking to the penumbras and emanations that may follow or to the values it may embody. When all else fails, the cabinetmaker justice may choose to recycle material from the Constitutional Court of South Africa.
    The umpire does not get to choose the ball he calls. If the ball coming at him concerns the 8th Amendment, he can only call what’s before him. And the opinions of the Inter-American Commission on Human Rights mean very little to that analysis.

  3. Ed Fallone

    Of course umpires are not supposed to change the rules of the game. My point is that this very characteristic makes them a poor metaphor for judges. Supreme Court Justices do change the rules, and ever since Marbury v. Madison that has been an integral part of the constitutional structure.

    Imagine an American League umpire who announces, at the start of a game, that he will not allow any Designated Hitters to bat. The pitchers must take their turn in the lineup. Every reasonable observer would understand that the umpire has changed the rules.

    Now suppose the umpire justifies himself by pointing out that the Designated Hitter is contrary to the vision of baseball as set forth by Abner Doubleday (I know Doubleday did not invent baseball, but bear with me). The umpire would argue that he is not changing the rules, merely restoring the game to its original state.

    The fact remains that the umpire is nonetheless changing the rules, just in a way that the umpire believes is justified. The fans, who have come to embrace the Designated Hitter rule, might disagree with the umpire’s justification. They would rightly question where the umpire gets the authority to make such a choice on their behalf.

    It seems to me that the originalists on the Supreme Court try to have it both ways. They want to change the rules back to some conception of the “original” Constitution. For example, the Heller case read the Second Amendment in a new way, contrary to centuries of understanding (ask Robert Bork), and now the Court is being asked to read the Privileges or Immunities Clause in a new way in order to support the holding in Heller. Furthermore, I have lost count of the number of times that Justice Thomas has dissented from a holding, asserting that current doctrine is misguided and that the Court should start over.

    And yet we are supposed to believe that these are not attempts to “change the rules,” but rather a “restoration to earlier purity” that somehow doesn’t count as change.

    My argument is that it is self-delusion to argue that Supreme Court Justices do not change the rules. They do, and the question we should all focus on is under what circumstances it is reasonable and defensible for the Supreme Court to exercise this constitutional authority and under what circumstances it is not.

    For this reason, I believe that the umpire metaphor recklessly undermines the general public’s understanding of the role of the federal judiciary.

  4. Terrence Berres

    “It seems to me that the originalists on the Supreme Court try to have it both ways. They want to change the rules back to some conception of the “original” Constitution.”

    It seems to me that an originalist would try to interpret the Constitution, or a subequent amendment, consistent with the particular meaning that received the consent of the governed. If one wants the convince the public of the extent of the power of the judiciary to “change the rules”, wouldn’t the place to start be the location where the grant of such power was explained in a proposal to the people to grant it?

  5. Rick Sankovitz

    Great, thoughtful post, Ed. One of Judge Posner’s latest, How Judges Think, takes on the umpire metaphor, too, and debunks it. He talks about the “open area” in which judges often find themselves, in cases of first impression and for lack of clear precedent or because even first principles are vague (as you suggest, purposeful vagueness as a consequence of political compromise) — and points out that supreme court justices operate more in the open area than any other judge.

    Metaphors are popular, useful ways to begin thinking about a problem, but rarely are they the solution. The problem in our era of snap judgment and instant gratification is that the people who judge us are unwilling to get beyond the metaphor.

    I’ve made cabinets, and not even the cabinetmaker metaphor does it for me.

    But it could be worse. I’ve always loved this John Kenneth Galbraith story about metaphors: He wrote a speech on economic and social policy for LBJ. Although the president liked the speech, he was afraid that no one else would. “Did it ever occur to you, Ken, that making a speech on ee-conomics is a lot like pissin’ down your leg? It seems hot to you, but it never does to anyone else.” Galbraith wrote: “Never since have I given a speech on economics without having that metaphor in mind.”

  6. Josh Byers

    See Professor Oldfather’s take on the judge-umpire metaphor from his 1994 law review article. 27 Conn. L. Rev. 17, 42-46 (1994). I think it’s safe to say that Professor Oldfather was on the cutting edge of debunking the value of that comparison!

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