For excellent commentary on the Left’s attack on Chief Justice Roberts’s umpire analogy, read Ramesh Ponnuru’s “Liberals v. Umpires” (from the current issue of National Review). Among other things, Ponnuru notes that liberal commentators, eager to beat a straw man, are falsely contending that the analogy “reduces judges to machines.” In fact, there is nothing in Roberts’s comparison of judging to umpiring that remotely suggests that the judicial role is robotic. In his confirmation testimony, Roberts specifically rejected the suggestion (made by Senator Kohl) that his umpire analogy implied that “judges merely operate as automatons.” Roberts clearly recognized that judging is a craft that requires and rewards human skill. Far from reducing judging to something mechanical, Roberts opined merely that “there are right answers and judges, if they work hard enough”—and set aside their personal preferences—“are likely to come up with them.”
Alas, E.J. Dionne Jr. remains deeply mired in his own confusion. In his Washington Post column yesterday, Dionne asserts that Elena Kagan’s hearing testimony “puts the lie to Chief Justice Roberts’s notion that judges are mere ‘umpires,’ as if their task was, in Kagan’s cutting word, to be ‘robotic.’” Apart from repeating the straw-man attack, Dionne conveniently avoids acknowledging that the judicial philosophy that Kagan did repudiate (with lip service, at least) was President Obama’s lawless empathy approach.
Dionne also imagines that “Republicans seemed to be admitting implicitly [that] it is conservatives who are now the judicial activists.” His evidence: Senator Coburn’s asking Kagan whether a law requiring that Americans eat three fruits and vegetables each day would be beyond Congress’s Commerce Clause power. But there is nothing inherently “activist” in believing that Congress’s enumerated powers have outer limits.
Dionne’s logical confusion continues as he asserts that the umpire metaphor “implies that the answer a particular Supreme Court majority comes up with is the one and only possible answer to a difficult question.” Not so. The umpire metaphor does imply that even difficult questions have right answers, but it in no way suggests that whatever a Supreme Court majority has come up with must be the right answer. As Ponnuru nicely puts it:
The strike is a strike whether or not the umpire calls it correctly. Roberts wasn’t arguing that judges are infallible; his argument implied the reverse. Judges will disagree and judges will err, but neither fact justifies abandoning impartiality as a goal.
Dionne’s final major error is to laud the ridiculous argument by committee Democrats that “a conservative court could bring us back to the Gilded Age.” As I discussed in detail in my hearing testimony, that argument rests on wild distortions of the Court’s rulings.