As we prepare for another Supreme Court confirmation drama brace yourself for the endless repetition of the notion (popularized by Chief Justice during his 2005 confirmation hearing) of a judge as a passive umpire mechanically calling balls and strikes. This is annoyingly vapid. Yes, judges do call balls and strikes, but more importantly they define the strike zone. They're able to call balls and strikes precisely because they unilaterally determine what constitutes the strike zone. They have a lot of discretion and latitude in determining the strike zone. Our statutes are like the baseball rule book. They don't have to invent new rules out of whole cloth to have significant impact.
Why is the strike zone so narrow or so wide? How do you maintain consistency given the varying heights and girths of the different ball players? How could the pitch into the dirt be a strike? Those are more interesting questions.
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