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10 Are Judges Tyrants?
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13 s I note in the previous chapter, federal judicial nominees regularly
14 Adescribe the job for which they are nominated as a modest one.
15 Umpiring is important to the game of baseball, but as John Roberts noted
16 in 2005, “[n]obody ever went to a ball game to see the umpire.” So also
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17 with judging. It is vitally important to the fair and efficient operation of
18 our political and economic systems; to note just one example, a central
19 achievement of modern democratic state- building was to enable private
20 contract disputes to be resolved by a neutral third party rather than a
21 contest of force. But like umpiring, judging best takes place in the back-
22 ground rather than at the center of public attention.
23 Partisan elected officials sometimes echo this narrative, but only when
24 describing judges who share their partisan affiliation or ideological pref-
25 erences. When describing judges and judicial nominees with whom they
26 disagree, partisan officials tell a very different story. When the Senate
27 Judiciary Committee held hearings in January 2006 on President George
28 W. Bush’s nomination of Samuel Alito as associate justice of the United
29 States, Democratic senator Charles Schumer observed that Alito’s record
30 on the Third Circuit, where he had sat for fifteen years, revealed a remark-
31 ably consistent pattern of conservative votes. Recalling the image that
32 Roberts had deployed so successfully the year before, Senator Schumer
33 noted that “[i]f the record showed that an umpire repeatedly called 95
34 percent of pitches strikes when one team’s players were up and repeatedly
35 called 95 percent of pitches balls when the other team’s players were up,
36 one would naturally ask whether the umpire was being impartial and fair.”
37 Referring to United States v. Rybar (3d Cir. 1996)— a case I examined in
38 chapter 2, in which Judge Alito had voted to strike down the federal ban
39 on possession of machine guns— Schumer asked the nominee whether he

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