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Sotomayor: The Umpires Strike Out!

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By William Fisher

With Sonia Sotomayor's swearing in over the weekend as an Associate Justice of the U.S. Supreme Court, legal experts are aggressively debating what was learned from her four days of grueling testimony before the Senate Judiciary Committee - and even whether these hearings are instructive or merely Capital Hill's version of Kabuki Theater.

The nomination of the court's first Latina member - and only the third woman to serve on the nation's highest court -- was confirmed by the U.S. Senate last Friday by a vote of 68-31, with all Democrats voting "aye" and nine Republicans bucking their Party's line to do likewise. She was sworn in by Chief Justice John Roberts on Saturday.

The widely accepted morning-after view among legal scholars is that Sotomayor's confirmation hearings were more about politics, campaign endorsements, and financial contributions than about the business of judging.

Amidst a torrent of thinly veiled Republican accusations that her off-the-bench speeches suggested she would be a "judicial activist" on the high court - tempered only by their fear of offending Hispanic voters -- she was questioned about only two or three actual cases.
From the Democrats, there were largely softball questions, punctuated by lavish praise for Sotomayor's personal story and her "mainstream" legal philosophy.

Evidently chagrined at being unable to hit a home run with cases alone, Republican Senators turned to baseball. The baseball analogy has become widely used by nominees ever since now-Chief Justice John Roberts famously stated at his own confirmation hearings in 2005: "Judges are like umpires. 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 a number of legal scholars we contacted expressed dismay at the use of a baseball analogy to define a jurist. To many, this represents the ultimate dumbing down of jurisprudential thinking. They ask why, if judging were only about balls and strikes, why would we need nine Justices, why would we so often have cases decided in five to four decisions, and why would so many Supreme Court rulings be reversed by later courts?

Nonetheless, the baseball analogy persisted throughout the hearings and in the vote on the Senate floor. SCOTUS (Supreme Court of the United States) Blog, a widely respected online report about the High Court's decisions, wrote that the Senators used the phrase "balls and strikes" at least 11 times, and "umpire" or "umpires" 16 times.

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For example, Senator Jeff Sessions of Alabama, the highest ranking Republican on the Judiciary Committee, said of a judge with a personal or political agenda, "Such an approach to judging means that the umpire calling the game is not neutral, but instead feels empowered to favor one team over the other."

But Senator Sheldon Whitehouse of Rhode Island countered with, "I particularly reject the analogy of a judge to an 'umpire' who merely calls 'balls and strikes'. If judging were that mechanical, we would not need nine Supreme Court Justices."

His conclusion is borne out by two centuries of Supreme Court rulings reaching different conclusions in the same cases and of majority decisions later being reversed. Just two areas -- civil rights and equal protections under the law -- provide ample illustrations.

In a civil rights case called Dred Scott v. Sandford in 1857, the Court ruled that people of African descent imported into the United States and held as slaves were not protected by the Constitution and could never be citizens of the United States. The Court later ruled that at least one part of it had already been reversed in 1868 by the Fourteenth Amendment, which gave equal rotection of the law to everyone in the U.S.

But perhaps the most telling example in the civil rights sphere is the Court's ruling in Plessy v. Ferguson in 1886. In a vote of 8 to 1, the justices ruled that states could force railroad companies to exclude African-Americans from first-class, or "ladies," cars. The case deprived African Americans of equal protection under the 14th Amendment and gave judicial sanction to the doctrine of "separate but equal."

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Legal experts ask, "If they were all umpires, why did one - the only Southerner and a slave-owner himself - dissent?"

It would not be until the mid-20th Century that these decisions would begin to be reversed, the most sweeping being a unanimous 1954 landmark ruling in a case called Brown v. Board of Education of Topeka .The Court struck down Plessy's "separate but equal" doctrine. The Justices concluded "that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal." The opinion spurred a social revolution.

And the issue of equal protection led to the historic 1973 decision in Roe v. Wade, which made abortion legal. In a 7-2 vote, the court's majority said the 14th Amendment's due process clause guaranteed a woman's right to privacy and to end a pregnancy - though neither abortion nor privacy are ever mentioned in the Constitution. Subsequent decisions have chipped away at this protection - for example, banning "late term" abortions -- and most Conservatives continue to push for a total reversal.

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William Fisher has managed economic development programs in the Middle East and elsewhere for the US State Department and the US Agency for International Development. He served in the international affairs area in the Kennedy Administration and now (more...)

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