By Howard M. Wasserman, Associate Professor of Law, Florida International University College of Law
Elena Kagan took on the judge-as-umpire/ball-and-strike meme yesterday in response to a question from Sen. Klobuchar and knocked it out almost as successfully as she could. No transcripts to be found, but here is the video and some thoughts.
1) Kagan said it was apt in saying that judges, like umpires, should not have a "team in the game," should not come onto the field rooting for one team over another.
OK answer, although she lost points for not using the Twins in her hypo in response to a question from a Senator from Minnesota.
As I have argued before, to the extent this is what the metaphor means, it does no work. No one believes a judge should be "rooting" for one party over another and we don't need an analogy to baseball to drive the point home. Besides, no one seriously believes an umpire "roots" for one team or that a judge "roots" for one party.