Yesterday's post on the illusion of neutrality by the current six authoritarian Republican USSC judges touched on the concept of legal formalism (LF). In the 1860s and 1870s legal scholars invented and developed LF as a means to impose neutrality in the application of the law. Today MAGA uses LF as cover for the modern authoritarian MAGA wealth and power movement to use against us today. LF wound up being used to protect vast unequal wealth distribution through the 1940s, but in modern times, it is now used by MAGA judges to advance authoritarianism and kleptocracy.
Writing yesterday's post led to a realization. Some authoritarian MAGA judges nominees signal their loyalty to authoritarianism and kleptocracy by referring to their alleged but fake neutrality in applying the law. The phrase "calling balls and strikes" elicited a personal feeling that the phrase was virtue signaling to authoritarians and kleptocrats. But, is there any evidence that feeling (intuition) is true? I asked Pxy, all of which is at the same link I posted yesterday:
Q: Have prominent legal formalists described the job of judges as one of calling balls and strikes as a way to convey the idea of being neutral, despite knowing that the neutrality they sought was an illusion to help authoritarianism maintain power.A: Yes, prominent legal formalists have indeed described the job of judges as "calling balls and strikes" as a way to convey the idea of neutrality. This metaphor was most famously articulated by Chief Justice John Roberts during his 2005 confirmation hearing, when he stated: "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, but it is a limited role. Nobody ever went to a ball game to see the umpire".Brett Kavanaugh used nearly identical language in his 2018 confirmation hearing, declaring: "A good judge must be an umpire — a neutral and impartial arbiter who favors no litigant or policy".
But, there is a complication (as usual). The balls and strikes analogy for judges has lost its original meaning, sort of. The phrase "balls and strikes" was used 11 times during Sonia Sotomayor's confirmation hearings, with "umpire" mentioned 16 times.
The thing is though, using the balls and strikes analogy gets the law wrong. The law and its application is not usually black and white. Shades of gray dominate most of the time (~85% ?). Congress is sloppy and incoherent in most of its laws. The Constitution is more often ambiguous about core rights than it is clear. And, there often is ambiguity how the English language is used compared to was is intended. Writers and speakers often leave meaning to context, sometimes intentionally so to allow people to believe what they want.
A law blog post picked up on the reality of the coded language. "In the context of a Senate Judiciary Committee hearing, and given our modern rhetoric about the role of judges, is there any doubt about what Roberts knew his audience would take from the comment? And is there any doubt about why the umpire analogy has immediately entered the vernacular?"
So there it is. When Democratic federal court nominees talk about only calling balls and strikes, everyone knows what they intend that analogy to mean. Who knows what the Dem nominee actually means, but it probably isn't LF.** But when a Republican nominee sits there and blithers about balls and strikes, all Republicans know the nominee is signaling they are a super-duper authoritarian LF trooper. Knowing what, if anything, the Dems in the room take from it is way above my feeble mental powers.
** The opposite of LF (anti-democracy) is ALR (American legal realism -- pro-democracy). Most Dem judges are adherents of ALR. So when Dem nominees blither about balls and strikes, they actually might know what the hell they are talking about. But if they do, they're arguably cynical liars, unless they really mean that also believe in LF legal ideology.
** My Dog, why is it so fracking hard for people to call authoritarianism out for what it is? Maybe Satan has a hand in this just to be frustrating.
Finally and FWIW, the last Q&A with Pxy at the link above indicates that Dem federal judge nominees know that the balls and strikes analogy misses the mark. The analogy has been criticized by some Dem judges, e.g., Elena Kagan. Existing evidence suggests that when Dem judicial nominees use the analogy, they are not signaling authoritarian intent. It is just rhetoric to get a Senate confirmation vote. However, when modern Repub judicial nominees use the analogy, they are signaling authoritarian intent.