Chez Chesler

The Volokh Conspiracy - -#1126558476 John Roberts' comparison of a judge to a baseball umpire reminded Jim Lindgren, of the Volokh Conspiracy, of an old joke:

First umpire: “Some are balls and some are strikes, and I call them as they are.” Second umpire: “Some are balls and some are strikes, and I call them as I see 'em.” Third umpire: “Some are balls and some are strikes, but they ain’t nothin' ‘til I call 'em.”

You heard it here first in 1995. (Or, using Google Groups, the earliest you may have heard it is here in 1992. It's an old joke, and I first heard it from Peter Newbatt Smith, now an attorney working for The Center for Public Integrity in D.C. Responding to a question from Senator Cornyn that cited Lindgren's blogging of the joke, Roberts identified with the umpire who says they are balls and strikes regardless of the call. I have always thought the third umpire is correct. The ball did or did not cross the plate within the strike zone, just as the accused did or did not do the bad act with the requisite criminal intent, but the scoring, like the finding of guilt or innocence, or the counting of votes, is dependent upon the umpire or the judge. The scoring has more consequence than the actual position of the ball.