Upon Further Review

“Judges are like umpires. Umpires don’t make the rules, they apply them.” So said John G. Roberts at his confirmation hearing to be Chief Justice of the United States a decade ago. “I will remember,” he promised, “that it’s my job to call balls and strikes, and not to pitch or bat.” With these memorable words, an enduring metaphor for our judicial system was born, one that would hang over each subsequent Supreme Court confirmation hearing. In his statement, Roberts was channeling the prevailing political sentiment and the President who appointed him. Introducing Roberts, George W. Bush asserted that the “American people made clear they want judges who will faithfully interpret the law, not legislate from the bench.” For the most part, Americans have accepted the analogy. Judges, after all, attain their positions because of their training in, and knowledge of, the law—a seemingly fixed and clearly defined set of instructions. Jerry Seinfeld captured this prevalent belief about the law when he observed: “What are lawyers really? To me, a lawyer is basically the person that knows the rules of the country. We’re all throwing the dice, playing the game, moving our pieces around the board, but if there’s a problem, the lawyer is the only person that has actually read the inside of the top of the box.”

Strangely, nowhere has society’s zeal for turning judges into umpires been more acute than in the area of, well, umpiring. The decade following the Roberts hearing has coincided with an explosion of instant replay in sports, replete with procedures and terminology more appropriate in a courtroom than on a basketball court. There are objections (“challenges”), decisions below (“calls on the field”), standards of review, questions of jurisdiction (the official responsible for the call) and reviewability, conferences, and appeals. The box top of our national pastime is increasingly crammed with tiny print dictating formalistic rules each step of the way, making sure that the men in blue—like their brethren in black robes—merely apply the law as written. Not content with turning judges into umpires, we’ve become committed to removing judgment from our umpires.

The impetus for this movement is the defining credo of our athletic time: get the call right. Even the most ardent opponents of our obsession with instant replay contend that the failure to fix bad calls undermines the legitimacy of the game. In 2010, before Major League Baseball implemented its current, expansive replay regime, sportswriter Joe Posnanski wrote:

[I]t doesn’t matter how good umpires were before all these new technologies, just like it doesn’t matter anymore if you have the fastest horse and buggy in the county. We SEE the missed calls now. And those missed calls are embarrassing the game. More, they are making the results of these games questionable. Why was gambling an issue? Because it made the results questionable. Why were steroids an issue? Because they made the results questionable. And here we are in 2010, and umpires are missing hugely important calls, loads of them, and games are being influenced by these blown calls, and baseball folks are just standing by and saying that the human element is part of the game? No, that[] can’t last.

There is some force to that argument. Don Denkinger’s infamous blown call at first base on what would have been the last out of the 1985 World Series undeniably and unfairly cost the St. Louis Cardinals the championship. As Denkinger himself reflected in 2014: “If it happened now, they’d review it and overturn it. Just like that.” But the last two years of replay have not been so simple. The 2015 playoffs were littered with replay controversies and significant doubts about whether the correct call was made. And as Posnanski himself documented, our attempts to get the call right can often impede that very objective.

On September 20, 2014, the Kansas City Royals and Detroit Tigers, separated by a mere two games in the American League Central Division standings with just over a week left in the season, played a one-run game decided by a crucial call in the sixth inning. As Posnanski beautifully describes, a Detroit error following a soft lineout to second led to a Kansas City run. Except that in the confusion, the Royals runner failed to retag third base and thus was actually out. Only, the umpire was also confused by the play, missed the runner’s failure to return to the bag before heading home, and called him safe. Enter replay. Applying Rule V, D-2 of the MLB replay rules, the replay official decided that the play was unreviewable as an issue of “whether a base runner left early when tagging up.” While this legal ruling was handed down, however, the stadium video-board operator showed the video of the play for the fans—and unwittingly the umpires. Upon being told that it was their judgment to uphold or reverse their call without the benefit of replay, the umpires on the field consequently reversed their call based on the benefit of the unauthorized replay looping on the video-board. Adding a delicious wrinkle, Posnanski points out that the replay official actually applied the wrong replay rule. The runner’s delayed break for home due to the error meant that the precise question presented should have been “whether a base runner touched a base” under Rule V F-3, a call which is reviewable, rather than whether the base runner tagged up, which is not. The umpires, therefore, should have been allowed to use formal replay review, at which point they would have seen their mistake and…also reversed the call. Thus, MLB’s replay system ultimately led to both the right and wrong call. Right, because, as the umpires ultimately concluded, the runner was indeed out. Wrong, because the replay official applied the incorrect rule of appellate procedure and because the field umpires nonetheless improperly applied that incorrect rule when they used the unsanctioned video-board replay. All of which, again, led to the correct call. Get the call right. What does that even mean?

That our thirst for correct calls cannot be quenched by formalistic replay rules should have been apparent well before baseball implemented its grand experiment. In 1999, the National Football League introduced its instant replay system, which survives in mostly the same form today. Under Rule 15, Article 3 of that system, a “decision will be reversed only when the Referee has indisputable visual evidence available to him that warrants the change.” In other words, we don’t even trust our referees to make judgment calls on slow-motion instant replay. Duke University Law Professor Joseph Blocher innocently asked in 2009 why the NFL doesn’t apply a de novo standard of review to replay—reviewing a play without deference to the call below—given that the presence of video evidence eliminates the need for the heightened “indisputable visual evidence” standard. It’s an excellent point but one that misses the pulse of the American public. Yes, we want error correction—get the call right—but we don’t want our referees turning into judges. More rules, stricter guidelines, less leeway, tighter controls—no problem. But a review system based on the judgment of the reviewers? No way. As Washington icons John Roberts and Bryce Harper both contend, no one came to a game to watch the umpire. We may appear concerned with fixing the game, but we’re really concerned with refs fixing the game. Baseball has been plagued with this very problem, as well. 2015 featured a spate of irate managers upset about calls affirmed upon review where the replay appeared to clearly counsel in favor of reversal. Said Tigers manager Brad Ausmus after an incorrect call was nonetheless upheld upon replay review this past June, “I want someone to explain to me what sufficient and insufficient evidence is. I can’t get an answer.”

Maybe this obvious deficiency can be cured by more rules tinkering. Lower the standard of review; expand the calls subject to appeal. Maybe then we can “get the call right” as umpires perfunctorily apply the rules with clarity, not controversy. Perhaps. Yet, the greatest disputes in replay involve the play that is simply too close to call. Did the fielder’s tag hit the runner’s leg just before it touched the base? Was the fan’s glove just in front of or behind the fence? All too often the inconclusive resorts to replay have confirmed only what we already knew: that our many cameras and multiple angles and slow-motion technology have brought us no closer to the truth.

All of which brings us to that new, more insidious specter haunting our ballparks, that would-be scourge of America’s national pastime—the baseball pitch clock. For those unfamiliar, the pitch clock is a new proposed remedy to baseball’s increasingly slower pace. The average MLB game has increased from 2.23 hours in 1950 to 3.13 hours in 2014. And the increase is even more pronounced over the last decade, where the average length of a game in 2004 was 2.85 hours. “Pace of play,” as the League terms it, is a real problem. Not only does the length of games prevent fans from seeing the finish of many games, and thus deters them from watching in the first place, but the time in between the action can make an otherwise tense and enjoyable game painful. There is no reason why the average game, absent extra innings or a rare offensive explosion, should take 3 hours. So MLB is absolutely right to address the issue.

The pitch clock, however, is the most inelegant way of addressing this problem. It attempts to strike at one of the greatest sources of delay, the length of time pitchers hold the ball in between pitches, by requiring pitchers to make each pitch within 20 seconds of receiving the ball from their catcher, or else receive a “ball” added to the count as a penalty. In doing so, the pitch clock takes a timeless game, yes figuratively but also quite literally, and times it. Certain changes to keep up with the times are inevitable and often beneficial. But you don’t have to be a crusty traditionalist to see that this is a fundamental change to the spirit of the game. Baseball’s defining feature has been the absence of short and arbitrary cutoffs. A season’s success must be earned over 6 months and 162 games. Games are measured in outs and not minutes, giving the losing team a chance at reversing even the most lopsided score. Baseball is a mood, and clocks kill the vibe.

But here is the most remarkable thing about the pitch clock—it does not even coincide with a new rule. No, as it turns out, baseball already has a rule requiring pitchers to throw within a certain time period. And Rule 8.04 actually provides the pitcher less time to hold the ball:

When the bases are unoccupied, the pitcher shall deliver the ball to the batter within 12 seconds after he receives the ball. Each time the pitcher delays the game by violating this rule, the umpire shall call “Ball.” The 12-second timing starts when the pitcher is in possession of the ball and the batter is in the box, alert to the pitcher. The timing stops when the pitcher releases the ball. The intent of this rule is to avoid unnecessary delays. The umpire shall insist that the catcher return the ball promptly to the pitcher, and that the pitcher take his position on the rubber promptly. Obvious delay by the pitcher should instantly be penalized by the umpire.

The pitch clock proposal is very clearly not a new “pace of play” rule. It is simply a “pace of play” enforcement mechanism. Moreover, it’s an enforcement mechanism that provides weaker application than the rule currently on the books. True, the alternative would be to task umpires with measuring the time themselves and make rulings without the cover of a giant center-field clock. And it would leave umpires in the difficult situation of having to call pitch length violations in critical situations, such as when there are three balls and three men on (thereby forcing in a run for the opposing team when the “ball” violation results in a bases loaded walk). Yet some might view this as a positive feature of the system. A properly enforced rule would give the threatened penalty some teeth, while the umpire would still maintain the ability to give pitchers leeway according to circumstance and culpability. Remember, the point of the rule is stylistic, not substantive. Limiting the time between pitches is an aesthetic gift to the fans, not a vital matter of competitive integrity. Yet, just as with the mechanical application of replay, simply enforcing the rule as written would open umpires’ judgment to further criticism and suspicion. In other words, we are so afraid of imbuing umpires with the discretionary power to enforce a rule, that we would prefer weaker enforcement, less sensitive application, and the erosion of the very essence of the game. No doubt it is only a matter of time until pitch clock violations are reviewable.

At the beginning of this past season, MLB implemented a modest “pace of play” change that broke against the pitch clock mold. The league announced a guideline that batters had to stay inside the batter’s box after every pitch that did not result in a live or foul ball. Umpires would be allowed to enforce this rule, although anyone who watched a game found that it was generally applied only to repeat offenders and then through warnings rather than penalties. Going into the season, ESPN’s Buster Olney predicted that this discretion would eliminate the effectiveness of the rule: “Will all the umpires and players handle the administration of the borders of the batter’s box in the same way? Of course not…If MLB determines that keeping the batters in the box must be a priority, it must put some teeth into the rule and relieve the umpires of the burden of enforcement, and it’s hard to imagine that can happen without a pitch clock.” Yet, after just one season of this and other modest changes, game lengths dropped by an average of six minutes. Meanwhile there were no uproars or ejections over games decided by a penalty for failure to stay in the box. Umpires were often firm but also flexible. It turns out there can be effective administration without formalistic implementation.

Following Judge Roberts’s opening statement, a veteran senator challenged his comparison of judges and umpires. “So, as much as I respect your metaphor, it is not very apt because you get to determine the strike zone. What is unreasonable? Your strike zone on reasonable or unreasonable may be very different from another judge’s view of what is reasonable or unreasonable…” observed Joseph Biden. This insight applies equally to the arbiters of any system. It is an illusion that more mechanical application of the rules leads to a fairer result. Even as we resist it, judgment—reasoned, informed, and accountable—will always be necessary for those that enforce the rules of the game. Judges are not umpires; rather, umpires are judges. At least for now, balls and strikes are not yet reviewable.

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