Judging as Refereeing and the World Cup

I wonder if Chief Justice Roberts is a fan of futbol.  As I watch the Germany-Serbia match this morning, I could not help but think of his analogy, during the confirmation hearings, between judging and umpiring.  As he famously said, “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. But it is a limited role. Nobody ever went to a ballgame to see the umpire.”  Fans of any sport know better.  Apparently, U.S. Senators did not.

The referee this morning has had a very active hand, calling yellow cards at at a very fast pace.  At one point during the first half, the announcers wondered whether this pace could possibly keep up, and what it would mean for the outcome of the game.  Wouldn't you know it, a few minutes later, the ref called a second yellow on a German players, sending him off to the bench.  Moments later, Serbia scored and the match remains 1-0.

The point, clear to anyone watching this match, is that the referee had a very clear idea of how he wanted the game to go, and called it accordingly.  This is not a novel point, and I don't mean to suggest otherwise.  The same is true of judging.  This is why I wondered, were the Chief Justice watching the game with, say Senator Sessions, what they would say to each other.  I would imagine the conversation to go something like this:

"Can you believe this referee, calling the game so tightly?"

"That reminds me of your nomination hearing, John, and the analogy you gave us about judging and refereeing. Brilliant!"

"I must say, I never thought your colleagues would buy it, or anybody else for that matter.  Can you believe it?"

As the hearings for General Kagan are soon to begin, the analogy will likely resurface with a vengeance.  Brilliant indeed. Or embarrassing.  You be the judge.

The White House and "Liberal Judicial Philosophy"

On "Face the Nation" two days ago, CBS Chief Legal Correspondent Jan Crawford discussed some documents she unearthed that will "give the White House something else to think about" regarding Elena Kagan's nomination to the Supreme Court.  Bob Schieffer first offered that one of the main reasons that Kagan was Obama's choice was the fact that she would be "easily confirmed."  But these documents proved that Kagan was "a lot more liberal than people realize."  According to Crawford (you might want to sit down as you continue reading, by the way):

These documents have her squarely within mainstream liberal thought.  She’s worried about this conservative Supreme Court undoing rulings that would give a woman the right to an abortion, she’s worried about gun rights, saying she is not sympathetic to an individual’s right to own a handgun, she’s concerned about some conservative rulings scaling back rights of criminals, that’s basic, mainstream liberal thought.

So basically, for a Democratic President to nominate a person to the Supreme Court who would not overturn Roe, Miranda et al., and would agree with Judge Robert Bork that the Second Amendment "guarantee[s] the right of states to form militia, not for individuals to bear arms" would bring a fight with conservatives that President Obama does not want?  

This, in a nutshell, highlights the challenge facing progressives in modern American politics.  

As Guy has argued, judicial nominations offer an "opportunity to debate the purpose of the Court, to explore alternative constitutional visions, and to argue about constitutional meaning."  Instead, the White House has fought back the notion that Kagan is a liberal with a vengeance, as if, in Crawford's words, "it's a smear to say their nominee is a liberal."

In the end, judicial nominations are fights over meaning.  Presently, the conservatives hold the clear upper hand: their judges are "paragons of judicial restraint," while liberal judges are "judicial activists" hell-bent on rewriting the Constitution to their liking.  Rather than offer a counter-narrative, President Obama has chosen to accept the conservative narrative as his own.  That is unfortunate.  He is thinking about his political future in the short term, when he should be thinking "long term for the Court and the law and liberal judicial philosophy.”