Metaphor Man: Elena Kagan, Judges and Umpires

Are your issues sinking in abstractions? Are the complexities as clear as mud? Do your simplifying models need traction? At FrameWorks, Metaphor Man helps to build simplifying models that work, so that framers can use them to communicate the essence of an issue — and on this blog, he’ll write about metaphors in the wild, how they work, and how people talk about them.

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Metaphor Man was excited to see how Elena Kagan dissected a metaphor during her US Senate confirmation hearings in late June. The metaphor in question was the “judges are umpires” metaphor, which got a public boost in 2005, when John Roberts, now Chief Justice of the Supreme Court, floated it during his confirmation hearings. “Judges are like umpires,” Roberts had said. “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.” It was his job, he said, to call balls and strikes.

Here’s the video of Kagan’s dissection:

Metaphor Man will leave the discussion of what judges do or don’t do to legal scholars and observers of courts; what he wants to touch on instead is the notion that metaphors naturally have limits, which Kagan uses to blunt her criticism of the metaphor (and succor the favor of those who think the metaphor is alright). “I think [the metaphor] is correct in several important respects,” she said, “but like all metaphors, it does have its limits.” Later conservative legal bloggers repeated it (such as here) to defend Roberts: “Metaphor has its limits. (Roberts would certainly agree; that’s why it’s only a metaphor.)”

Anyone who works with metaphors will recognize that they don’t do everything you need them to do, whether you’re explaining a concept, clarifying an idea, or making a complex abstract process more concrete. For Roberts, the metaphor of judge as umpire didn’t have any limits — that is, it worked perfectly well in the way that he wanted, in order to communicate to Senators (and beyond) that he wasn’t going to be one of those “activist” judges.

Yet the notion that metaphors have limits is itself a metaphor, as if metaphor is some kind of vehicle that can’t be driven too fast, or a tool that shouldn’t do certain tasks — as if it were a thing designed for some purposes but not for others. But what Kagan points out as a “limit of the metaphor” isn’t actually about the metaphor pushed to mean something it doesn’t mean. Rather she pokes a hole in the metaphor by saying that it “might suggest to some people that law is a kind of robotic enterprise, that there’s an automatic quality to it, that it’s easy, that we just sort of stand there and we say ball and strike and everything is clear cut, and there is no judgment in the process.”

What you’d know if you knew anything about umpires is that they’re not robots, either, as Bruce Weber pointed out in an entertaining 2009 NYT essay, where he says that there’s nothing automatic about the job — umpires use judgment all the time, and in the major leagues they’ve been arguing about where the strike zone falls for 30 years. “[The strike zone] is like the Constitution,” an umpire told Weber. “[It] is a living breathing document.”

The metaphor is unfair to judges and umpires, Weber concludes — just as the metaphor of limits, at least in this case, was unfair to the metaphor.

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