Monday, June 14, 2010

Constitution: Justice Souter Contradicts Conservative Roberts on Umpire Analogy

Tags: Constitution, Justice Souter Contradicts Conservative View of Constitution, Roberts, School Segregation, Pentagon Papers

Fort Worth Star Telegram Linda P. Campbell, June 11, 2010, Justice Souter’s in a Harvard Commencement Talk, Contradicted What Conservatives Say About the Constitution

Finally a former Supreme Court Justice David Souter shows us why the conservatives are wrong about the Constitution being Immutable, but is quite vague about many things so judgement is required to make the appropriate decisions fitting the situation now and not how things were in the past where the wealthy made decisions to maintain and increase their wealth.

Ops, I guess I am wrong!

Jim Kawakami, June 14, 2010,

Linda P. Campbell Editorial:

Thank you, (perfect game baseball umpire) Jim Joyce, for so vividly demonstrating the fallacy of John Roberts' "judges are like umpires" analogy.

Almost five years ago, Roberts, then a federal appellate judge and former high school football star nominated to be Supreme Court chief justice, sat before the Senate Judiciary Committee and threw out a catchy baseball image.

"The role of an umpire and a judge is critical. They make sure everybody plays by the rules," he said. "But it is a limited role. Nobody ever went to a ballgame to see the umpire."

Republican senators, especially, ate it up like a nickel hot dog.

Real fans knew Roberts didn't get to the ballpark much.

It took Joyce, a 21-year major league veteran, to set things straight.

Joyce is the umpire whose blown call at first base June 2 cost Detroit Tigers pitcher Armando Galarraga the 21st perfect game ever thrown in the major leagues.

A perfect game means 27 batters up, 27 down. No batters walked, were hit by a pitch or reached on an error. No base runners, period. The pitcher dominates, and his fielders are flawless.

With two outs in the top of the ninth inning, Galarraga got Cleveland Indians shortstop Jason Donald, the 27th batter, to hit an infield bouncer. First baseman Miguel Cabrera fielded the ball and threw it to Galarraga, who stepped on first just before Donald did for the out - but Joyce, standing just up the baseline, ruled the runner safe.

Perfect game ruined by an umpire's imperfect judgment.

The Tigers retired the 28th batter, giving Galarraga his first career shutout.

The travesty became a feel-good story, with Joyce apologizing for his mistake and the 28-year-old pitcher showing uncommon grace under the circumstances.

It also illustrated the human element involved in judgment.

Yes, judges and umpires apply the rules. Jim Joyce applied the rules, called it as he saw it - and made the wrong call on that play. The next night, he worked behind the plate, and his judgment surely made a difference in the seven walks and 12 strikeouts recorded and in some fraction of the 324 balls and 203 strikes thrown.

Exercising judgment might be simple when the call is obvious: the batter clearly swings, or the law is so clear it doesn't take a Harvard degree to figure out.

But the Constitution isn't always as unambiguous as some people like to pretend. And what the founders intended for us to do centuries later often isn't as plain as the nose on your face.

In giving Harvard's commencement address two weeks ago, retired Justice David Souter took on those complaints about the court "making up the law" and announcing rules not in the Constitution.

He pointed to the 1971 Pentagon Papers case as an instance in which the court had to choose between two constitutionally protected values - free press and national security. The justices said newspapers could publish a classified report about the history of the Vietnam War but other types of sensitive information might not fare the same way.

The Constitution, Souter said, "Embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. We want not only liberty but equality as well.

"These paired desires of ours can clash, and when they do, a court is forced to choose ... between one constitutional good and another one. The court has to decide which of our approved desires has the better claim, right here, right now."

Brown v. Board of Education, Souter said, was a case of justices seeing facts in a new light. The justices who in 1896 upheld "separate but equal" must have considered segregated railroad cars progress from the days of slavery, he said. But to those in 1954, segregated schools sent a message of inferiority that the Constitution didn't allow.

Labeling judges as "activists" or saying they've strayed from "just applying the law" simplistically ignores the complexity of what they're required to do.

"The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another," Souter said.

"If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason, by respecting all the words the framers wrote, by facing facts and by seeking to understand their meaning for living people."

That doesn't take a flawed sports analogy to explain.


Linda P. Campbell is a columnist and editorial writer for the Fort Worth Star-Telegram. Readers may write to her at 400 W. 7th Street, Fort Worth, Texas 76102, or via e-mail at

© 2010, Fort Worth Star-Telegram.

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