The judge as umpire is an apt metaphor. Both wear uniforms that set them apart. Both see to it that a set of rules are obeyed. Both make authoritative decisions — albeit one calls balls and strikes, the other can quite literally decide life or death.
Because this trope helps lawyers explain the law to the rest of us who are legally illiterate, they use it a lot. Brett Kavanaugh, in particular, employed the metaphor long before his nomination to the Supreme Court. Consider this excerpt from a speech that Kavanaugh gave at Catholic University in 2015:
To be a good judge and a good umpire, it's important to have a good demeanor—to walk in the other's shoes, whether it be other litigants in the case or the other judges, and to keep our emotions in check, and to be calm amidst the storm.
Keep cool, stay calm, and call them like you see them. Never let your emotions get the best of you, because it is the job of the judge, just like the umpire, to apply the rules dispassionately. It is good advice, good advice that has been twisted into an ugly and idiotic argument against the confirmation of Kavanaugh.
Because the judge became irate while defending himself from what he says are false allegations of attempted sexual assault, Democrats argue, he shouldn’t be confirmed. Sen. Ed Markey, D-Mass., even goes so far as to insist that Kavanaugh broke his own rules. He shared this little gotcha video earlier Tuesday:
In 2015, Brett #Kavanaugh delivered a speech at Catholic University titled “The Judge As Umpire,” outlining what he believes makes a good judge.— Ed Markey (@SenMarkey) October 2, 2018
He fails his own test. Here is Brett Kavanaugh on why Brett Kavanaugh shouldn’t be on the Supreme Court: pic.twitter.com/mrbJn8qV9y
This is, of course, idiotic. Kavanaugh was plenty umpire when he decided more than 300 cases on the D.C. Circuit Court of Appeals and Kavanaugh demonstrated the demeanor of an umpire during his first set of confirmation hearings, but Kavanaugh wasn’t behind the plate during the second set of hearings. He was in front of the Senate Judiciary Committee defending his reputation, his family, and his marriage from uncorroborated and increasingly bizarre accusations.
Kavanaugh was still an umpire last week — only he was an umpire who suddenly got jumped in the parking lot by the losing team after the game. And hell no, he wasn’t going to act dispassionately when they started throwing bottles at him. He wasn’t calling the game at that point. He was trying to escape an angry mob with his reputation intact.
If the nominee becomes a justice, it is a safe bet that he won’t challenge Justice Elena Kagan like he challenged Sen. Amy Klobuchar, D-Minn. Questions about the Commerce Clause are generally less explosive than allegations of rape.
And so it was perfectly understandable and even justifiable for Kavanaugh to get angry. As we wrote at the time though, it was not acceptable for him to get irrationally irate. The nominee went too far when cross-examined by Klobuchar. But otherwise, nothing in his conduct was disqualifying. And ,in fact, the current arguments about Kavanaugh's temperament are very telling. If the supplemental FBI investigation comes back clear after a week, Democrats will ding the nominee not for being a rapist but for being a hothead when accused of rape. It is a move of desperation.
So, of course umpires shouldn’t let their emotions get the best of them during games. But only an idiot would sucker punch an official in the parking lot and then expect that bloodied umpire to calmly wipe his nose and refer to the rule book. Kavanaugh is an umpire in the courtroom. In front of the Senate last week, Kavanaugh was a man fighting for his life.