Is Being an Umpire Enough?
by Gary DeMar

“Judges are like umpires. Umpires don’t make the rules; they apply them.” On the opening day of testimony before the Judiciary Committee, John Roberts used this baseball metaphor to describe his judicial philosophy. Sen. Joseph Biden stated that “the metaphor is not very apt, because in baseball a set rule defines the strike zone.” Biden went on to say: “Without any knowledge of your understanding of the law—because you will not share it with us—we are rolling the dice with you, Judge.”

Does anyone remember how the Senate Judiciary Committee, particularly Joseph Biden, attacked Clarence Thomas for believing that the Constitution had to be interpreted in the light of a higher law theory? While the Constitution states that it is the “law of the land,” there is very little actual law in the Constitution. For example, there are no prohibitions against murder, theft, or rape. So why are these actions wrong? The Constitution doesn’t say. The Constitution either implements whatever moral worldview is in vogue at the time or it rests on a fixed set of external moral precepts. Thomas believed that natural law was that external law. A number of present Supreme Court justices understand the need for a law external to the Constitution. They’ve appealed to International Law for the Constitution’s external pou sto. This is similar to the belief by a number of prominent scientists that Earth had in long ages past had been “seeded with life.” The logical question to ask is, “Where did the alien seed originate?” In legal terms, what is the foundation of International Law that gives it moral validity?

The framers believed that “the laws of nature and of nature’s God” was almost universally accepted. This is why Thomas could write: “We look at the Natural Law beliefs of the founders as a background to our Constitution.”1 When the left-leaning members of the committee heard this, they went on the attack. Thomas was saying that there are fixed moral laws written into the created order that even the Constitution and its interpreters are bound to follow. No wonder Roberts took the equivalent of the “Fifth.” He wasn’t about to grab hold of the higher law Tar Baby because he knew Biden’s sic et non view of natural law. During the Thomas hearings, Biden wrote an article that appeared in the Washington Post.2 He claimed the following for his version of natural law:

• It does not “function as being a specific moral code regulating individual behavior.”
• It is not “a static set of unchanging principles.”
• It is “an evolving body of ideals.”

According to Biden, natural law is whatever the courts say it is or isn’t. In fact, a Supreme Court justice doesn’t even have to believe in law as a fixed moral principle unless, of course, it means denying women the legal right to kill preborn babies. If there was ever a fixed law, abortion rights is it.

“In our system,” Biden writes, “the sole obligation of a Supreme Court justice is to the Constitution. Natural justice can supply one of the important means of understanding the Constitution, but natural law can never be used to reach a decision contrary to a fair reading of the Constitution itself.” To repeat, there is almost no law in the Constitution. Biden knows this. This is why those on the Left (and a good number on the Right) want to be the judicial gatekeepers. Personal opinions are the basis of moral decision making. This is why there cannot be a higher law governing the Constitution and the decisions of judges. Biden’s article does not tell us anything about how we determine what’s right or wrong, and that’s the way he wants it.

What happens when two individual choices are in conflict? That’s why we need judges, Roberts and Biden would say. But this doesn’t answer a more fundamental question: Who writes the rules for the rule book that the judges (umpires) are to follow? This is the one question that no one dared to ask Judge Roberts, but it’s the only one that matters!