Dreyer: Speaking of analogies, how about judges and basketball?

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David DreyerI have always wanted to be a basketball referee. Throughout my sports fan life, I have often seen refs that were good, and some that were not so good. As a new lawyer many years ago, and through 16 years of pre-bench practice, I also saw judges who were good and some who were not so good. I always made mental notes about the essential qualities of both kinds of judges for my future reference. Likewise, I have years of mental notes about the qualities of a good basketball referee:

• Knowledge of the rules

• Strength

• Common sense

• Flexibility

• Wisdom

• Patience

• Confidence

• Thick skin

• Courage

After 23 years of judging, it is clear my aspiration to be a good judge relates directly to the very same qualities. That is why I want to go from my court to the basketball court.

During Chief Justice John Roberts’ 2005 confirmation hearing, he gave a now-famous analogy between judges and baseball umpires:

“Judges are like umpires. Umpires don’t make the rules; they apply them. … The role of an umpire and a judge is critical. They make sure everybody plays by the rules … it’s my job to call balls and strikes and not to pitch or bat.”

Former 7th Circuit Court of Appeals Judge Richard Posner later disagreed when he wrote that no one actually believes legal rules are applied like baseball, and if they were, “We must imagine that umpires, in addition to calling balls and strikes, made the rules of baseball and changed them at will.” But Justice Brett Kavanaugh delivered a good speech in 2016, before he joined the U.S. Supreme Court, to further extend Chief Justice Roberts’ analogy. He discussed the important qualities of a judge and how they compare with umpires. First, Kavanaugh said, is lack of partisanship: “If you are playing the Yankees, you don’t want the umpires to show up wearing pinstripes.” That is why judges wear robes, I guess. Second is following the rules “in letter and in spirit.” The spiritual parts of rules are the most intriguing to me. For the third quality, then-Judge Kavanaugh used a basketball ref example to extol consistency: “You will see a basketball player get a charge call, and you will see the coach yelling and pointing down to the other end of the court. The coach is saying to the referee, ‘Call that down at the other end of the court as well.’” Other qualities include collegiality, demeanor, an open mind, backbone and my favorite, “tuning out the crowd noise.” He said: “One of the most important duties of a judge as umpire is to stand up for the unpopular party who has the correct position on an issue of law in a particular case” — especially when it’s the home team taking the hit (i.e., local city, county or state government or corporation).

Academia has also been taken with the judge-as-umpire claim over the last 20 years, even before Chief Justice Roberts. Some, like 2010 Yale Law School student (later Mueller investigation prosecutor) Aaron Zelinsky, say Chief Justice Roberts picked the right sport, but the wrong position. A judge is more like the commissioner of baseball, they say, because of the large discretion he/she can exercise and because of rule-making authority. Others, like Marquette University Law School Professor Chad Oldfather, worry about the cultural impact of sports metaphors on the legitimacy of the legal system itself. Professor Oldfather complains in recent years that a better sports analogy for judges would be skating and gymnastics, where they are actually called “judges” and, like our legal jurists, require a level of practice and proficiency in the sport itself. Third Circuit Court of Appeals Judge Theodore McKee also believes that, “… the public’s readiness to embrace that metaphor may chill honest discussion of the role of judges and thereby move us farther from the principle of objective adjudication rather than closer to it.” Finally, Professor Michael P. Allen of Stetson University College of Law provides a limited defense of the judge-umpire analogy. He writes that, although analogies have drawbacks, it’s worth risking the comparison of judges and umpires because it “informs a consideration of the appropriate role of a judge in American constitutional democracy.” Hmmm.

I like calling balls and strikes as much as anyone. But basketball referees are the better analogy to judicial referees:

• Out of bounds = badgering a witness

• Traveling = hearsay

• Charging/offensive foul = leading question

• Over the back/rebound foul = improper closing argument

• Clean blocked shot = objection sustained

• Goal tending = objection overruled

• Foul in the act of shooting = not allowing witness to finish the answer

The biggest similarities between the two are the intangibles. When judges and refs blow the whistle, it means a timeout. During a game, refs have to develop an overriding sense of what fair play means in the particular game and among the particular players. During a trial, judges have to develop an overriding sense of equity for the case and the parties. Allowing a violation to go by sometimes maintains overall justice. Calling a quick foul, when appropriate, also does the same thing.

Although judges do not bat or pitch, as Chief Justice Roberts says, they are still as much a part of the game as the players — and they largely determine the outcome. But I’m so glad I don’t have to hear crowd boos after a bad call.•

Judge David Dreyer has been a judge for the Marion Superior Court since 1997. He is a graduate of the University of Notre Dame and Notre Dame Law School. He is a former board member of the Indiana Judges Association. Opinions expressed are those of the author.

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