That’s the title of my new Confirmation Tales post in which I discuss the umpire simile (“Judges are like umpires”) that John Roberts invoked at his Supreme Court confirmation hearing in 2005. I contrast it with the remarkably clumsy “empathy” standard for the “last mile” of a “marathon” that then-Senator Barack Obama embraced in explaining why he would vote against Roberts’s confirmation.

Roberts’s simple simile emphasizing the judicial duty of impartiality would prove to have much greater public appeal that Obama’s empathy standard. The disparity illustrates a broader feature that has marked Supreme Court confirmation battles since then: the triumph of conservative rhetoric on the role of judges.

An excerpt:

Roberts’s umpire simile sparked a lot of commentary, some of it insightful, most of it not. One common criticism was that the simile didn’t capture the entirety of what the role of a Supreme Court justice is. That observation is obviously correct, but trivially so.
A good simile conveys similarities. A simile is not a definition or an assertion of identicalness. So just as Roberts’s simile doesn’t mean that judges wear masks and chest pads, it doesn’t undertake to provide a comprehensive account of what judicial decision-making consists of. It instead emphasizes a feature that the Left was implicitly denying: that judges, as servants of the law, have a duty to apply the law impartially.

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