Dark Cloud logo





Dark Endeavors

Think of it this way, Mr. President.......

A monumental disaster is just like an All Star baseball game.....

This is Dark Cloud on Wednesday, September 14, 2005.

When Curt Flood had his free agency case go to the Supreme Court decades ago, it prompted Justice Harry Blackmun into a long and sentimental trip down baseball myth and nostalgia in the introduction to his majority opinion. It was a jarring read then, even in a case about baseball, but baseball seemingly appears in lots of legal opinion by judges, where it generally doesn’t really work as syllogism or metaphor, but nobody admits it. Like the game: tradition.

Lots of judges do this. Baseball provides a reassuring metaphoric shoulder for judges to lean on, removed as they often are from real world life and decisions, and condescendingly seen as something the little guy on the street can understand. If, coincidently, it provides a handy sound byte or catchy phrase for the media to use within attributed quotes, that’s just coincidence.

Baseball came up again in the Senate’s quizzing of John Roberts for the Chief Justice’s spot. Roberts likened a judge to an umpire in baseball. He could disagree with the rules, but his only job and reason to exist is to enforce them. A judge, implied Roberts, should be as faceless and unknown as most umpires are. This was designed to assuage those who fear Roe Vs. Wade will go away under his leadership, because that is in the rules that Roberts implies he will have to enforce. But while precedent counts, it does not actually rule, and that’s why, despite its impressive Latin phrasing - stare decisis - the law is not protected from change. Stare decisis is not law. It’s only institutional operating procedure.

This was not lost on the otherwise entirely annoying and self-regarding Senator Joseph Biden of Delaware, who hoped to use Roberts’ baseball metaphor to his own liking. Biden leapt at the analogy to the umpire, and suggested he was trying to pin down Roberts’ strike zone. Thereby, Biden underscored the failure of sports metaphor in general and baseball in particular. To use it, you need to pretend that there are rules which are enforced strictly and fairly. But that is never the case in sports and, again, baseball in particular. It’s not even true in law. In baseball, every umpire has his own concept of a strike zone, and just about all of them are wrong, as overhead cameras have long shown. That’s because, frankly, no human being can see a ball coming at them at 90 mph and be able to accord its exact position to a diamond blocked from view by a catcher and this against the position of a batter’s shoulders and knees always moving. It’s a preposterous basis for an accurate decision. But we pretend it exists. So in baseball, so in law.

And that’s why judges and politicians love the baseball analogy. Most people watch baseball as a form of traditional entertainment rather than athletic contest, like kabuki plays or Olympic skating where judging is clearly subjective. Baseball is now almost entirely pitchers and batters and statisticians all inflamed with steroids. There is hardly any of the batting finesse and base running that, in the past, made it a far more impressive and skilled game. That’s pretty much the courtroom these days, isn’t it? The evidence, the witnesses, the building of cases often is irrelevant because it comes down to the chemically fueled opening and closing yammerings of opposing counsel, bolstered by melodramatic CSI reports the juries can only pretend to understand.

The public tells itself that baseball is played by the same rules, but different ballpark dimensions and different rules mar any conception of objectivity, and pitchers and hitters have preferred ballparks because their particular skills are favored in some and not others. Like criminals in Texas tend to get harsher treatment than, say, in Wisconsin for the same state or federal crime.

Roberts’ benefactor, President Bush, plays the same undignified game of word control. While it is hard to blame Washington for the sadistic and selfish abandonment of, for example, the aged in a rest home, the lack of command, control, communication, and cajones that permeated the disaster relief effort in a demonstration of trickle down authority was solely Bush’s doing by the hacks he rewarded with important jobs. Did he admit that? No. He only said that whatever federal failures are shown to have existed, he is responsible. Mr. President, from the moment you declared a Federal Disaster before Katrina hit land, you were responsible for it all, as you bragged about on camera.

You owned a baseball team, right? Think of it this way, Mr. President. Your handling of Hurricane Katrina is like that All Star game in Milwaukee where the Baseball Commissioner declared a tie because of bad planning and he didn’t know what else to do. See? Only in your case, lots and lots of people died. Bummer. On the upside? Roberts will probably be approved.