In Kagan Hearing, Senate Liberals Downplay the Importance of Impartiality

Brian Walsh / June 28, 2010

In their opening statements today in the confirmation hearings of nominee Elena Kagan for the Supreme Court, liberal Senators have taken to arguing that a Justice’s job is not to “call balls and strikes.” Most conservatives rightly believe the law should govern, not judges, and that Supreme Court Justices should interpret the law as it is written. Conservatives have therefore promoted the “balls and strikes” analogy ever since then-Judge John Roberts used it during his confirmation process before becoming Chief Justice. Roberts said that, if confirmed, “I will remember that it’s my job to call balls and strikes and not to pitch or bat.”

Liberal Senators are attacking this powerful analogy because it does a terrific job of capturing the objectivity and impartiality that a judge in America should always maintain. A Supreme Court Justice should diligently avoid inserting himself or herself into the game to try to ensure that one team or the other (i.e., either party before the Court) wins. A judge should always ensure that both teams conduct themselves according to the existing rules of the game – that is, according to the law.

While denigrating the “balls and strikes” standard, the statements by Senators Diane Feinstein (D-CA), Sheldon Whitehouse (D-RI), Herb Kohl (D-WI), Russ Feingold (D-WI), and Benjamin Cardin (D-MD) also played on populist prejudices. They over-simplified and trivialized Supreme Court cases as pitting “real people” with “real stories” against (presumptively unjust and exploitative) businesses and other, unspecified “powerful interests.” (more…)