Wednesday, April 15, 2009

Baseball’s Judicial Branch?

Spot doesn’t read George Will very much. Even Dave Thul might say that if you’re looking for a pretentious, elitist snob, you couldn’t do better that read the Cucking Stool, anyway. No need to bother with Will!


Both George Will and Spot like baseball, however. It is hard to imagine that a man and a dog who both have affection for the game could be so different. Even Will’s baseball columns seem to bring an actuary’s enthusiasm to the task, however. And so it was last Thursday that Spot was a little surprised to read this one: Baseball’s Judicial Branch.

Was he writing about the drug testers, Spotty?

No, grasshopper; it was  column about umpires and a new book by Bruce Weber on the subject of umpires: As They See ‘Em. Will does wax a little enthusiastic, uncomfortably so for Spot, about the complete authority with which umpires rule:

Umpires are islands of exemption from America's obsessive lawyering: As has been said, three strikes and you're out -- the best lawyer can't help you. But because it is the national pastime of a litigious nation, baseball is the only sport in which a nonplayer is allowed onto the field to argue against rulings.

Will then compares umpires to the judicial branch:

Sport -- strenuous exertion structured and restrained by rules -- replicates the challenges of political freedom. Umpires, baseball's judicial branch, embody what any society always needs and what America, in its current financial disarray, craves -- regulated striving that, by preventing ordered competition from descending into chaos, enables excellence to prevail.

An interesting metaphor, but Will fails to pursue the richness of it. Sure, umpires call balls and strikes, as Professor Ilya Somin notes:

Some of Will's points strike me as stretches. But he is right to focus on the umpires' broad discretionary authority over the strike zone, which is indeed somewhat analogous to judges' broad discretion in exercising the power of judicial review. I drew a similar analogy in this post.

In fact, Will does allude to a larger role for umpires, writing that umpires are  the game’s “custodians of decorum.” Yes, they are. But when they are maintaining decorum, they are as much administrators as judges. They are also administering after a fashion when they decide whether a ball is still in play when it lands close to the foul line: is it fair or foul? If it’s fair, a lot of things can still happen in many baseball situations.

The weakness in the judicial branch metaphor for Spot is that the judicial branch is mostly – not entirely – backward looking. Judicial is what is happening to Bernie Madoff now; the Securities and Exchange Commission is what should have happened to him years ago.

In both baseball and capitalism, you cannot rely entire on a judgment after the fact.

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