Tuesday, September 13, 2005

Balls and strikes? You becha!

I've been watching replays of Judge Roberts' Senate confirmation hearings this evening and I have many thoughts that I hope to blog about later. For now, I want to point out one response I wish Judge Roberts had given to an opening comment by Senator Herb Kohl from Wisconsin (hence, the "You becha!" from the title). It seems that the Democrats are trying to attack the aptness of Judge Roberts' baseball umpire analogy and Sen. Kohl's particular attack was to point out that different umpires have different strike zones and different basketball referees call different games.

Point conceded. Roberts stayed on message, perhaps politically savvy, and did not address the question directly. What Roberts should have said to this observation is that no one thinks it is a good thing to have different umpires with different strike zones and different referees with a different sense of how hard you have to hack Shaq for it to be a foul. Moreover, no one thinks it is a good thing for umpires and referees to stray away from the written rules of the games. Indeed, several years ago, Major League Baseball was so concerned about certain umpires, shall we say, creative strike zones (e.g. Eric Gregg) that they coralled all the umpires, showed them the actual written rule describing the strike zone, and told them that they would be watched and appropriately rewarded/disciplined if their strike zone did not comport with the strike zone described in the rule book.

What Herb Kohl celebrates is the idea that judges should be courageous and strike new ground when they think it is necessary and appropriate, even if this means going outside the written rules - i.e., the Constitution. In this respect, he tried to characterize Brown v. Board of Education as such a decision. Judge Roberts appropriately rebuffed this attept and characterized Brown as more consistent with the original meaning of the 14th Amendment. But I wonder what Senator Kohl would say if, in the Rose Bowl when Winconsin was playing UCLA, the referees struck new ground and stopped enforcing the college rule that a ball carrier is down when a knee touches the ground in favor of the bold and exciting NFL rule that a ball carrier must be down by contact. I wonder what his reaction would be if this extra-statutory rule change occurred after a UCLA player tripped on the one yard line on his way to a sure touchdown but rolled in the endzone afterwards without being touched.


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