Soccer referee instead of a baseball umpire

A fellow jackel, Matthew Reid Krell has a recent law review article that looks at judges through the lens of a soccer referee instead of as an umpire.

The rules of soccer, as well, like the rules of baseball, allow for significant leeway on the part of the referee. To take just one example that turns up in nearly every game, the rule for declaring a player offsides states
that a player commits an offside offense by

a) being in an offsides position, and b) “if, at the moment the ball is touched or is played by one of his team, he is, in the opinion of the referee, involved in active play by: 1)interfering with play; 2) interfering with an opponent; or 3) gaining an advantage by being in that position.”

While this is a relatively straight-forward call when the player in offsides position receives a pass, it becomes much less clear when an offsides player is away from the active play around the ball. For example, if the offsides player has “crashed the box,” or moved close to the goal, are they interfering with the keeper? If the offsides player is available as a pass recipient from the player in possession, and the keeper has been drawn off the attacker’s angle, in order to position themselves to deal with a pass to the offsides player, has the offsides player gained an advantage, even if the play never actually runs through them? ….
When considering whether to send off a player (a “red card”) for denying an obvious goal-scoring
opportunity, FIFA directs referees to consider a five-part test. While this is not as complicated as baseball’s “triskaedeka-partite test” for determining whether a pitcher has committed a balk, referees evaluating this
must do so at a sprint, in a split second, and may be forty to fifty yards away if play has moved down the field quickly. In the same manner, judges must sometimes make decisions they do not feel prepared to
make…

I think the umpire analogy has stronger roles at the non-Supreme Court level. There is discretion but a fairly well defined rule book. At the Supreme Court level, the judges have far more discretion within the confines of their field. Precedent is informative to some degree but not absolute and consistency between decisions is a quasi-random variable that can be distinguished away.

So when we see the deployment of the umpire just calling balls and strikes quotes, think about the referee working towards facilitating a fair and safe game.

59 replies
  1. 1
    rp says:

    The balls and strikes/umpire analogy was always incredibly stupid, but of course our horrible media lapped it up. The most famous quote from perhaps the most important Supreme Court case says:

    It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.

    ReplyReply
  2. 2
    🌷 Martin says:

    Yeah, I call bullshit. Rework the analogy where the referee is a retired player from one of the teams in the game, because those are the only umpires/referees being nominated. John Roberts sides with the Democrats only when not doing so threatens to blow the court up. See ACA.

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  3. 3
    LAO says:

    Unfuckingbelievable. Or totally believable. He pardoned the Oregon Ranchers. I can’t even.

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  4. 4
    LAO says:

    @rp: @🌷 Martin: It’s always been a shitty analogy. Every Judge is influenced by their personal beliefs and world views.

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  5. 5
    eric says:

    I would add an element. The referees can come (generally) from two schools of thought: (1) scoring as many goals as possible is the point of the game or (2) scoring as few goals as possible is the point of the game. There is nothing in the rule book that dictates the point of the game. The referee will then read the rules and view the facts on the field through that lens. So, when there is a close interpretive question, they will seek to facilitate what they view as the point of the game. The analogy to law is as follows. For certain judges, the law demands order over substantive justice, so there is a rigid hermeneutic (see Scalia); for others the law should serve substantive justice, so there is a hermeneutic that seeks to balance competing interests (see Brennan). The Constitution has no provision requiring a particular hermeneutic approach.

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  6. 6
    smintheus says:

    The law and politics are about real things that matter. It’s not a sport or a game. Commentators show they are idiots when they treat law or politics (and SCOTUS is always political) as if it were a game.

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  7. 7
    Yarrow says:

    @smintheus: And it’s bad for democracy. This Vox video shows how it morphed into ESPN-like coverage. It’s good for TV and bad for us.

    CNN treats politics like a sport — that’s bad for all of us
    When politics is a game, truth telling takes a back seat to controversy.

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  8. 8
    satby says:

    @LAO: I was just coming to see if anyone saw that. It’s weaponizing the militia movement nuts, now they can feel like they won’t be risking prison.

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  9. 9
    LAO says:

    @satby: I’m pretty disgusted by this. I doesn’t serve this country well, when we reward extremists and normalize their behavior. Big Sigh.

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  10. 10
    Kelly says:

    @LAO: What’s your problem? The ranchers only risked burning a bunch of fire fighters to death. There was cattle feed that needed protection!

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  11. 11
    LAO says:

    @Kelly: I know, I know — I can’t believe I’m so upset about a little arson.

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  12. 12
    Yarrow says:

    @satby: I’ll have to say the pardon power is not one I’d thought of when Trump was running. It just didn’t occur to me that he could/would weaponize it. Of course he did. I feel stupid for not identifying it, but there were so many more obvious issues like the Supreme Court picks.

    Has any other president used his pardons in this manner? I only remember presidents pardoning at the end of their time in office, except for Ford pardoning Nixon. It seems really unusual to pardon all throughout the term.

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  13. 13
    trollhattan says:

    @LAO:
    “What’s a little arson among friends?”

    The very concept of federal ownership and control of land is poison to these people and anything that degrades that control is Just Fine, including destroying it (and BTW that land is OURS, all of us, so fuck the crooked thieving Bundys sideways).

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  14. 14
    trollhattan says:

    @LAO:
    BTW, know who the luckiest guy in America is? This guy. I’ve seen the Rim Fire footprint from the handy highway overlook. The burn extent literally goes beyond the horizon.

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  15. 15
    B.B.A. says:

    Dylan Matthews
    ‏Verified account @dylanmatt

    American constitutional law remains objectively the strangest academic discipline.

    It’s like if every philosophy department only read Plato’s Republic, insisted that Plato was wrong about nothing but also agreed with them about everything, and refused to read other philosophers.
    10:12 PM – 9 Jul 2018

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  16. 16
    piratedan says:

    the sports analogy is all wrong… this is much more like a Casino and the GOP is the house….

    also, for a Supreme Court Justice to negotiate with a sitting President to “pick” his replacement successor tells you just how much disdain Kennedy has for the process and the American people.

    what a creep, rule of law my ass, unless this is very much a case of my rules, my law.

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  17. 17
    satby says:

    The last Seals and medic left the cave!! All out safe!
    Hooyah!

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  18. 18
    LeeM says:

    @LAO: There seems to be an inherent inconsistency in the Trumpist worldview. Step over our border and it’s trespassing and illegal entry, but the takeover or private use of federal land is OK.

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  19. 19
    trollhattan says:

    @satby:
    Back when they were still missing I had thought the worst. This outcome is amazing, doubly so considering the phenomenal difficulty the rescue presented. I hope the one rescuer who gave his life is properly honored in perpetuity for his ultimate sacrifice.

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  20. 20
    LAO says:

    @LeeM: I’m sure that they see no inconsistency. White people have a right to all the land, any land. And the brown people, well, you know.

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  21. 21
    LAO says:

    @satby: This is actually the only thing getting me through the day today. Remarkable. Amazing.

    ReplyReply
  22. 22
    JPL says:

    @LAO: I agree with your comments. It’s great to be white in america, if you don’t have a conscience.

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  23. 23
    JPL says:

    @satby: Amazing!

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  24. 24
    Brachiator says:

    @satby:

    The last Seals and medic left the cave!! All out safe!

    A little follow up required:

    After the boys had spent so long in the cold and dark with poor ventilation and relatively little to eat and drink, there were concerns that they would be in a far worse state. Now that they are dry, warm and in safe care, full medical assessments can be done.

    None of the first eight has a fever – a sign of a possible infection – although two have needed antibiotic treatment for suspected lung infections. Doctors will be checking for any infections, such as “caver’s disease”, a lung disease caused by a fungus that grows in bat droppings. They will also make sure any cuts and scrapes that the boys have on their skin are clean and healing nicely.

    The boys remain in quarantine, meaning their parents will not be allowed any physical contact. This is partly to protect the boys from unnecessary infections until they regain their strength, as well as to prevent them passing on anything they might have picked up in the wet cave.

    They will need to build up their muscles and their immunity, as well as get used to living in the outside world again. For now, they wear shades to protect their eyes from the bright light.

    Kinda reminds me of astronauts returning to Earth. I continue to be just … delighted… to read about the degree to which this rescue effort was thought out, planned and executed. And of course, so grateful that the loss of life was so minimal (although to the family and friends of the diver who died, the significance of his death is huge).

    So, all in all, damn right:

    Hooyah!

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  25. 25
    Big R says:

    Hi! Author here! In general I’m hesitant to get too wrapped up in the dialogue on this because my feeling is that if I didn’t adequately explain myself in the published manuscript, it’s dirty pool to get a second bite at the apple, so to speak. But a couple of things that are worth expanding on from David’s analysis:

    1) The piece is doing two pieces of work. One is an inside-baseball theoretical point that is only of interest to people who write this stuff (happy to answer questions if you’re interested, of course). The other is to suggest that prior metaphors for judging are incomplete and reify the process in a way that makes it harder to actually do the judging. So I’m arguing that we should add the soccer referee to our stable of metaphors, not that it’s the only one that’s useful. But I think a broader argument that I’m making is that we should encourage a multiplicity of metaphors precisely to avoid reification of judging in an improper way. So yes to casinos, yes to the retired player metaphor; yes to any other metaphor that illuminates some important aspect of what’s being done. But it’s important to make sure that our metaphors don’t become our objects (this, BTW, is where I think John Roberts went off the rail, metaphor-wise).

    2. Certainly we’re all viewing this through the lens of the pending Kavanaugh nomination, but I want to be clear that the piece is intended to take a broader view of judging than just the Supreme Court. In fact, several of the prior metaphors that I reject, I toss precisely because they only work if you’re thinking specifically about the Supreme Court. So my interest in the piece is in the act of adjudication, not the Supreme Court.

    3. (This piece is spitballing for a piece that hasn’t been published yet, so it’s more half-baked.) We like to toss around the “rule of law” as a heuristic for good adjudication systems, but it’s actually pretty hard to nail down what “the rule of law” means. I’m happy to answer questions about where this comes from, but basically, I conceive of the rule of law as constituting a decisionmaking triad (disputants and decisionmaker) engaged in a contest over the authoritative allocation of resources. But what makes adjudication a “rule of law” process is that the disputants have to claim their right to resources through reasoned arguments and evidence, and the decisionmaker’s allocation of resources must be responsive to the disputants’ arguments and evidence, including explaining why the loser’s arguments don’t win. Like I said, this is more half-baked, and I’m open to being wrong about it. But I think it matters because we like to talk about “the rule of law” and really what a lot of people mean when they say that is “outcomes I support using a process I support.” Sometimes they’re willing to drop the outcome requirement. Anyway, I’ll be around for about twenty minutes if anyone wants to talk about the piece more. Or I can get bumped by the news cycle and we can talk rancher pardons instead.

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  26. 26
    trollhattan says:

    @LAO:
    It’s more complicated than that. Locals demand control of “their” local land and are quite happy to intimidate and denigrate anybody and everybody who dares to get in their way. Most of that second cohort are lily-white city dwellers and “elitist.” The Bundy acquittals and these pardons are weapons aimed at the state and federal employees who manage, improve and preserve the land; our land.

    Those locals will despoil the land left to their own devices. They love it alright, to its very death.

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  27. 27
    trollhattan says:

    @Big R:
    Nice to see you!

    I’m bothered by the reductio ad absurdum implicit in Roberts’ balls&strikes metaphor, as it implies patting those senators on their thick little heads and intoning “Don’t worry, I got this” and that law is simply either/or. Sports metaphors aren’t necessarily simple any more than, say, a surgical or cooking comparison. It’s how they frame and wrap up the point.

    With that said, since the nominee coaches basketball there are all kinds of lovely questions available for that sport but I’d be satisfied if he could at last explain the soccer offsides rule so I can ID it when I observe it.

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  28. 28
    Kelly says:

    @trollhattan:

    Those locals will despoil the land left to their own devices. They love it alright, to its very death.

    Absolutely true. I grew up in rural Oregon. I had just finished my degree and started my career in the big city when the spotted owl war began. Summer logging jobs paid for my last two years of school. It was a weird time for me as I came to realize what I had been doing wasn’t sustainable. I was a traitor ruined by education.

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  29. 29
    rikyrah says:

    @satby:

    The last Seals and medic left the cave!! All out safe!
    Hooyah!

    this is absolutely wonderful!!

    Needed this good news.

    ReplyReply
  30. 30
    gVOR08 says:

    One of the things I love about tennis is the simplicity of the rules. As with balls and strikes, there may be ambiguity about properly seeing what happened, but the rules don’t require judgement calls.

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  31. 31
    Amir Khalid says:

    @Big R:
    I have only one criticism: It’s offside, not offsides. I think the latter is a foul in the sport of handegg.

    Okay, two criticisms. In football, the ref is not making the call all by himself. Even at the lowest level of the sport, there are two assistant referees.(The guys with the flags, who are in radio contact with the ref.) In the top-flight game there is now video-assisted refereeing. Another two refs, also in radio contact with the centre ref, monitor the match on live video. So there’s five pairs of eyes on the match, not just one. You’ll have seen them in their booth in World Cup coverage. Football refs get more decision support at matches than they used to even a few years ago. I’m not sure this was the best choice of analogy.

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  32. 32
    smintheus says:

    @B.B.A.:

    It’s like if every philosophy department only read Plato’s Republic, insisted that Plato was wrong about nothing but also agreed with them about everything, and refused to read other philosophers.

    This describes the Chicago school of Leo Strauss and his acolytes. They’re right-wing nuts.

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  33. 33
    Mike in NC says:

    Honestly, Trump sides with anti-government ammosexuals because they’re a big part of his base. Who could be surprised?

    Maybe Dylann Roof can petition for a pardon, too.

    ReplyReply
  34. 34
    🌎 🇺🇸 Goku (aka Amerikan Baka) 🗳 🌷 says:

    @LAO:
    David Hogg was at some even recently and a bunch of Open Carry assholes were there to counter-protest him.

    Have any them been challenged with the argument that they want open carry so they can intimidate and threaten their opponents?

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  35. 35
    ruemara says:

    @LAO: We rewarded them with the Bush presidency and yes, I blame the media for that.

    ReplyReply
  36. 36
    raven says:

    Juventus have completed the signing of Real Madrid superstar Cristiano Ronaldo for a reported fee of £105 million.

    Real Madrid confirmed on Tuesday that they have agreed to sell the forward, with Sky Sports News reporting the fee that will be exchanged between the two sides.

    ReplyReply
  37. 37
    rikyrah says:

    In secret recording, GOP candidate made candid comments about party primaries
    07/10/18 10:40 AM
    By Steve Benen

    …………………

    And what a recording it is. We learned a month ago, for example, that Cagle admitted to Tippins that he deliberately supported “bad public policy” as part of a scheme to hurt a different rival candidate. Yesterday, a new revelation from the recording emerged, and this one may be even more politically damaging.

    Cagle can be heard candidly discussing the GOP primary’s sharp turn to the right, saying the five-man race came down to “who had the biggest gun, who had the biggest truck and who could be the craziest.” […]

    “The issues you talk about are the issues I care about as well. The problem is in a primary – and you and I are just talking off the record, frank – they don’t give a (expletive) about those things, OK. In the general election, they care about it, OK. But they don’t care about it in a primary.” Cagle says in the newly released snippet.

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  38. 38
    Tilda Swintons Bald Cap says:

    @🌎 🇺🇸 Goku (aka Amerikan Baka) 🗳 🌷: You know that Kavanaugh is very pro gun rights and has written opinions favoring the gun nuts. I feel sorry for the Parkland kids, they may actually get some legislation through via more Democrats, and then the SCOTUS will declare said gun control unconstitutional. Also:

    Trump pardons ranchers whose case sparked Bundy takeover of Oregon refuge

    ReplyReply
  39. 39
    🌎 🇺🇸 Goku (aka Amerikan Baka) 🗳 🌷 says:

    @Tilda Swintons Bald Cap:
    That’s why we’ll need to pack the courts. It’s not like we have much to lose at this point. The damage is already being done.

    ReplyReply
  40. 40
    Aleta says:

    I suppose the carrot and stick spirit of christmas in TP world may be on display as we head into the election. Gifts for all good bullies, no rest for resisters throughout this plague filled land.
    Bring out your base! Bring out your base!

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  41. 41
    🌎 🇺🇸 Goku (aka Amerikan Baka) 🗳 🌷 says:

    @🌎 🇺🇸 Goku (aka Amerikan Baka) 🗳 🌷:
    Sorry, it should be “court”, not “courts”.

    ReplyReply
  42. 42
    🌎 🇺🇸 Goku (aka Amerikan Baka) 🗳 🌷 says:

    @Aleta:
    I always wondered what the hell those two guys were doing, wallowing on the ground.

    ReplyReply
  43. 43
    Gex says:

    @trollhattan: And they will absolutely demand a public bailout when it all goes to shit because they run it into the ground. Privatize profits, socialize costs.

    ReplyReply
  44. 44
    Tilda Swintons Bald Cap says:

    @🌎 🇺🇸 Goku (aka Amerikan Baka) 🗳 🌷: Having lived over sixty years in this country and witnessed our politics, you will never see the Democrats pack the court. Packing the court will only lead to an arms race. Next Republican Senate adds or subtracts as they see fit and on it goes. Since 1980 the Democrats have been fighting a rear guard action. Think about it since Reagan the only two Democrats who won big enough to beat the EC were Clinton and Obama. They are political rock stars. The Republicans have put up the most mediocre shit stains of white male politicians and win or cheat and then win. We have lost and lost big time. Trump just got his get out of jail free card. We should just recognize that we can’t win in the current system, not long term.

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  45. 45
    Roger Moore says:

    @Yarrow:

    Has any other president used his pardons in this manner? I only remember presidents pardoning at the end of their time in office, except for Ford pardoning Nixon. It seems really unusual to pardon all throughout the term.

    Carter’s pardon of the draft dodgers might fit into a similar category. It was a clearly political move made early in his term.

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  46. 46
    🌎 🇺🇸 Goku (aka Amerikan Baka) 🗳 🌷 says:

    @Tilda Swintons Bald Cap:
    No. It’s not lost yet. Look at the increased turnout we’ve been getting over the last year. Our base is fired up. People are waking up to what the GOP has become and they don’t like what they see. There is a backlash coming; the current political dynamic is not sustainable or stable.

    ReplyReply
  47. 47
    Tilda Swintons Bald Cap says:

    @🌎 🇺🇸 Goku (aka Amerikan Baka) 🗳 🌷: Well we’re fired up this year, but there’s cheating, which we will probably never get to the bottom of, and there’s 2020, 2022, 2024 etc. There’s no guarantee that we can consistently win in the current system. We need to consistently keep the Republicans out of power for the next 20 or so years, I don’t see that happening.

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  48. 48
    🌎 🇺🇸 Goku (aka Amerikan Baka) 🗳 🌷 says:

    @Tilda Swintons Bald Cap:

    I don’t see that happening.

    Everything is impossible until it’s not. It won’t be easy but we’ll have to try. The Dems will need to play hardball, just like the Republicans have. People are getting fucking sick of their shit; just look at the public shunning of administration officials and even Mitch McConnell. Their whining about “civility” is proof that it is working and scaring them.

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  49. 49
    Kelly says:

    @Gex:

    And they will absolutely demand a public bailout when it all goes to shit because they run it into the ground. Privatize profits, socialize costs.

    The costs have been socialized since the west was settled. The budgets of rural counties and schools have been massively subsidized by a percentage of revenue from federal lands for generations. When the tap was shut off the righteously independent hicks refused to vote any tax increases to pick up the slack. They prefer to go without schools, roads, police or jails. Here in Oregon these counties have tax rates half those of the never subsidized counties.

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  50. 50
    TenguPhule says:

    @satby:

    It’s weaponizing the militia movement nuts, now they can feel like they won’t be risking prison.

    Someone tell me again that these guys are all out of shape cowards who aren’t a real threat.

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  51. 51
    NotMax says:

    Time to drag out the rundown of the three types of umpires again.

    1) “There are balls and there are strikes, and I calls ’em as I sees ’em.”

    2) “There are balls and there are strikes, and I calls ’em as they are.”

    3) “There are balls and there are strikes, but they ain’t neither ’til I says so.”

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  52. 52
    rikyrah says:

    Kavanaugh already saying what the White House wants him to say
    07/10/18 10:02 AM
    By Steve Benen

    After Donald Trump announced that Judge Brett Kavanaugh would be his nominee for the Supreme Court, the president welcomed the conservative jurist to the podium to deliver some prepared remarks. These were his first three sentences:

    “Mr. President, thank you. Throughout this process, I’ve witnessed firsthand your appreciation for the vital role of the American judiciary.

    “No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination.”

    The fight over Kavanaugh’s nomination is going to cover an enormous amount of important ground, and I’m sensitive to the importance of not letting trivia detract from what really matters.

    But before the debate begins in earnest, it’s probably worth pausing to note that these opening comments were quite odd and raise some legitimate concerns about why in the world he’d say something like this.

    First, his presidential praise was almost certainly wrong. Conservative interest groups presented Trump with a list of jurists deemed acceptable by the right, and the president chose from his menu of pre-selected options.

    Let’s not pretend Trump carefully and thoughtfully scrutinized the possible nominees’ rulings and academic work. The Washington Post reported two weeks ago that the president asked aides about prospective nominees’ academic writing – not because he cared to read any of the published pieces, but because Trump simply wanted to know if the work exists.

    Second, in American history, there have been over 160 Supreme Court nominees. According to Kavanaugh, before Trump, “No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination.”

    There’s simply no way Kavanaugh can speak to this with any authority. For him to state such a claim as fact is hard to take seriously.

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  53. 53
    Roger Moore says:

    Honestly, anyone who uses the “just calling balls and strikes” analogy needs to learn a bit more about umpiring. MLB has had enormous, long-term problems getting their umpires to call a consistent strike zone. Plenty of umpires would proudly talk about how they called “their” strike zone, and it was more important for them to be self-consistent than to adhere strictly to the rule book or the strike zones called by other umpires. Commentators would go along with it and happily claim that it was the responsibility of pitchers to figure out what strike zone the umpire was calling that day and deal with his personal interpretation of the rules. As long as the umpire was consistent- or inconsistent in ways that favored established players over rookies, who needed to prove themselves to the umpires before they could expect to get the close calls- that was all anyone could expect.

    Things have gotten a bit better recently, but seriously, calling balls and strikes is a terrible metaphor for what conservatives claim they want out of judges.

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  54. 54
    MattF says:

    OT. I hate Twitter, but (via jwz):

    https://twitter.com/HumansOfLate/status/1015330093743398919

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  55. 55
    stan says:

    @LeeM: @LAO: There seems to be an inherent inconsistency in the Trumpist worldview. Step over our border and it’s trespassing and illegal entry, but the takeover or private use of federal land is OK.

    Nothing inconsistent there. Things white people do are legal – at worst, honest mistakes. Things brown people do are usually illegal and certainly immoral.

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  56. 56
    germy says:

    So the whole "deliberation" process was just for the spectacle of it…? I wonder if the other 3 final contenders for SCOTUS knew Trump had already picked Kavanaugh and was just using them as props in his reality TV presidency? https://t.co/igEHQK2Shr
    — Caroline O. (@RVAwonk) July 10, 2018

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  57. 57
    🌎 🇺🇸 Goku (aka Amerikan Baka) 🗳 🌷 says:

    @rikyrah:
    Sounded like a ridiculous tongue bath for Trump, which it was. Glad I didn’t watch.

    ReplyReply
  58. 58
    trollhattan says:

    @rikyrah:

    “No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination.”

    Yeah, the suckup quotient is high with this one. Surprised he didn’t call it “bigly.”

    Lucky us. He should have paid more attention to mom, who must have learned at least a little about the real world while in the gradeschool classroom. This schmuck has worked for Ken Starr and Dubya, and I’m sure admires both bigly (oh please some senator, ask him about Starr’s time at Baylor). Lucky us.

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  59. 59
    Gex says:

    @Kelly: True. I left unstated all the subsidies they already get. But rest assured the will demand *more* when their little rebellion against public management of these lands leads to where we all know it is going to go.

    ReplyReply

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