5 Alb. Govt. L. Rev. 286 (2012)
Joseph Z. Fleming
During his Senate confirmation hearings, now Chief Justice
John G. Roberts initiated his testimony by noting: “Judges are
like umpires.” According to conservative commentator George F. Will, the author of the excellent book on baseball, Men at Work: The Craft of Baseball, the laws of baseball are shaped by
umpires. Chief Justice Roberts used a comparison enabling the
reference to be appreciated by many (those in black—the
Justices—and those in blue—the umpires). Because baseball is
the “National Pastime,” the comparison is useful to examine the
implications. Will provides a classic illustration of the finality of
the umpire’s ruling—describing a confrontation between a player
and an umpire:
Once when Babe Pinelli called Babe Ruth out on strikes, Ruth
made a populist argument. Ruth reasoned fallaciously (as
populists do) from raw numbers to moral weight: “There’s 40,000 people here who know that last one was a ball, tomato head.” Pinelli replied with the measured stateliness of John Marshall: “Maybe so, but mine is the only opinion that counts.”