Hearing reflections - Day One

Yesterday, the New York Times took on the analogy between judges and umpires. Almost as if in coordination, a number of Democratic Senators riffed on it.

Of course, judge as umpire is not a perfect analogy. I tend to think it is better expressed in terms of the tale of three umpires. The first says that he calls them as they are. The second says he calls them as he sees them. The third says that they are nothing until he calls them. A judge - at least in a court of last resort - is closer to the second umpire. There are judgment calls but he ought to believe that there is something called a strike zone and that he needs to conform his calls to it rather than his own sense of what is good for the game.

Last week, the Brennan Center - a left wing policy center associated with the NYU Law School - released a study showing that Judge Sotomayor's record is much like that of her Second Circuit colleagues. It's an interesting bit of work. But the most illuminating thing about it is that there are not large differences between any of the judges on the Second Circuit. As the study notes, over 90% of the constitutional decisions in which she participated were unanimous. That won't be true on the Supreme Court where only the most difficult and unsettled cases will be heard. That's why aggregate stats of the kind pushed by the Brennan Center are of limited value.

Am I missing something or was Senator Leahy's summary of what happened to Miguel Estrada (he was nominated during the time that the Republicans controlled the Senate and did not get a hearing) enormously deceptive? Fifteen days after Estrada was nominated, Senator Leahy's colleague from Vermont began to caucus with the Democrats and control of the Senate flipped. What prompts people to make such shoddy arguments?