America's war of words: The devious language games of modern political theater

What the Supreme Court under John Roberts tells us about the powerful influence of the well-chosen analogy

Published September 27, 2014 3:59PM (EDT)

John Roberts at his confirmation hearing on Capitol Hill, Sept. 13, 2005              (Reuters/Kevin Lamarque)
John Roberts at his confirmation hearing on Capitol Hill, Sept. 13, 2005 (Reuters/Kevin Lamarque)

Excerpted from "Shortcut: How Analogies Reveal Connections, Spark Innovation, and Sell Our Greatest Ideas."

Robert Bork's failed confirmation battle in 1987 changed the way future Supreme Court nominees prepared for confirmation hearings, and the way they re­sponded to their inevitable grilling before skeptical senators. A good example of this was the 2005 confirmation hearing of Judge John Rob­erts, who had been nominated by President George W. Bush to be­come chief justice. Roberts, a conservative with an opaque record, sought to allay the fears of liberal senators who were concerned that another conservative justice might help overturn well-established precedents the Court had established in past decades.

“Judges and justices are servants of the law, not the other way around. Judges are like umpires,” Roberts reassured them in his open­ing statement. “Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.

“I have no agenda, but I do have a commitment,” Roberts contin­ued. “If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it’s my job to call balls and strikes and not to pitch or bat.”

For a nominee seeking to soothe any worries that he might lead a radical philosophical shift on the Court, making a simple analogy be­tween judge and umpire was disarming. With an extraordinary econ­omy of words, it appealed to people’s positive associations with baseball and evoked many legitimate parallels. In baseball as in law, both sides in a given contest get to make their case, and do so through a process that plays out under the watchful eye of an impartial arbiter who ap­plies the relevant rules. And where do umpires direct their attention on every pitch? Right down the center, penalizing pitchers whose throws are too high, low, left, or right.

Subtly, the analogy also suggested other parallels that argued for his confirmation. More than any other American sport, baseball tips its hat to its own history and tradition. As such, it celebrates continuity over change. What could be more appropriate in a chief justice whose job it is to honor legal precedent? Just to make sure the senators got his point, Roberts had amplified the basic analogy in more than one way, specifically: “Nobody ever went to a ball game to see the umpire” and “it’s my job to call balls and strikes and not to pitch or bat.” Such state­ments reinforced the notion that observers could expect few surprises from him as a judge, let alone anything radical. He was, in short, a neutral arbiter, not a player in the contest itself.

The analogy was persuasive in another way, too. Just as an umpire could not be expected to call a game before it was played, a judicial nominee could not be expected to articulate anticipated judgments be­fore hearing the specifics of an actual case. To insist on such hypothet­ical judgments would be to demand that Roberts demonstrate prejudicial bias—exactly the opposite quality that one seeks in a judge. Would the analogy save him from such inevitable hypotheticals during cross-examination? No, but it helped inoculate him when he then de­flected such questions as inappropriate.

In a hearing that quickly devolved into long senatorial speeches, detailed discussions of specific cases, and the nuances of constitutional philosophy, the umpire analogy—short and easy to understand—was a catchy sound bite that played over and over in the media. Even Sena­tor Biden, who opposed Roberts’ confirmation, acknowledged the analogy’s effectiveness on the second day of the hearings. He called it a home run—all the passengers and conductors on his train ride home to Delaware had been buzzing about it, Biden said.

But when Biden finished with his friendly banter, he proceeded to explain why the umpire analogy wasn’t apt at all. As he noted, the strike zone is defined by a rule, and while an umpire has the authority to apply that rule, he or she does not have the authority to change the rule itself—or any rule of the game, for that matter.

By contrast, a Supreme Court justice can and does change rules if he or she can muster a majority vote from their colleagues on the bench. And in sustaining or overturning the status quo, the Court shapes the meaning of the laws that society must live by, and even the meaning of the Constitution itself. In fact, the legal precedents each court inevitably sets become very difficult to overturn and can affect millions of people for generations to come. From segregation to wire­tapping to rules governing money in public elections, the Supreme Court is not a passive arbiter in American democracy but rather a ma­jor player. “All of the things that we debate about here and the Court debates that deserve 5–4 decisions, they’re almost all on issues that are ennobling phrases in the Constitution, that the founders never set a strike zone for,” Biden said. “You get to go back and decide.”

Biden’s argument was correct but came too late. Despite the um­pire analogy’s fundamental flaw, Roberts’ assertion had already stuck in people’s minds. For millions of Americans and for thirteen senators on the eighteen-member committee who voted to recommend that Roberts be confirmed, an umpire was a judge, and a judge was an um­pire. And a few weeks later, just as the Major League Baseball play-offs were about to begin, the full Senate voted 78–22 to elevate Roberts to the Supreme Court as chief justice.

In this leadership role, Roberts has indeed led the court to change many rules of the game—from the way corporations can help finance political campaigns to expanding the limits of permissible search and seizure through secret national security courts. But what’s most rele­vant here is what his anodyne statement “Judges are like umpires” re­veals about analogy’s broader persuasive power. A closer look at the statement and how it meets the five criteria of effective analogies will show just how such analogies work so effectively.

1. Use the Familiar to Explain the Less Familiar

As noted, the first job of a persuasive analogy is to use something familiar to explain something less familiar. In the broadest sense, Roberts used a familiar figure in baseball—an umpire—to explain the job of a Supreme Court justice. In a culture unfamiliar with baseball, the analogy would not have worked; in America, as the baseball play-offs approached, it was a perfect call. The analogy was so basic that it didn’t even require listeners to know much about baseball. Almost anybody who has ever seen a game on TV would recognize the umpire standing behind home plate making judgment calls. Their word is fi­nal, too.

2. Highlight Similarities and Obscure Differences

The second job of a persuasive analogy is to highlight similarities and obscure differences. In any analogy, there are going to be similar­ities and differences between the objects of comparison. The key is determining which are most relevant. Roberts, a man of sharp intel­lect and deep legal experience, probably recognized the logical weak­ness at the core of his assertion that judges are like umpires: Umpires can’t change the rules, but Supreme Court justices can—and do. In fact, that is core to their job. To an attentive and astute listener, all of the similarities between judges and umpires do not trump the overrid­ing and disqualifying difference: A Supreme Court justice is a rule maker, and an umpire is not. But the way Roberts shone a spotlight on the similarities had many observers nodding “yes” before anyone real­ized the big difference he was simultaneously sidestepping, unmen­tioned, in the shadows of his argument. How did he do this?

Research suggests that in business negotiations, sellers tend to do better when they make the first offer. In this instance, Roberts is sell­ing an idea: “Judges are like umpires.” By asserting the equivalence between the two, he psychologically anchors this argument in the minds of listeners, and the burden of disproving it falls on those who doubt its accuracy.

In the case of selling a given analogy, this first-mover advantage can be especially advantageous. Research by Northwestern University psychology professor Dedre Gentner and her colleagues suggests that even the simple assertion of an analogy can create an “analogical inser­tion effect” through which a listener mistakes their own inferences from an analogy as presented facts, even when those inferences don’t fit with their prior attitudes or beliefs. Calling this the resistance-is-futile hypothesis, the researchers write that the analogical insertion effect can shift people’s thinking against their own will, even when those changes are emotionally unpalatable.

Having stated the fundamental likeness of judges and umpires, Roberts bolsters his argument with evidence: “Umpires don’t make the rules; they apply them.” That is certainly true—umpires don’t make rules. He follows this with another truthful parallel: “The role of an um­pire and a judge is critical.” Yes, both are vital in their own respective domains. Then, to bolster his case further, he expands on a shared re­sponsibility: “They make sure everybody plays by the rules.” Yes, under ideal circumstances, that is true, too. But note what Roberts omits: He never says that judges don’t make rules. By stating that a judge is like an umpire, and that umpires don’t make rules, he primes the average lis­tener to infer that judges don’t make rules. And he camouflages this quick sleight-of-mind among a host of obvious similarities.

The beauty of Roberts’ analogy is that everything he said was fac­tually true. But the main point he succeeds in establishing—that he will not change the rules of the game—is patently false. Because while the roles of judges and umpires are alike in a general sense, they are entirely different in the role most relevant to the question at hand: Would Roberts, if confirmed as Supreme Court chief justice, overturn precedent and create new rules of the game?

3. Identify Useful Abstractions

Like most politicians, senators tend to yield to public opinion—after all, their jobs depend on keeping their constituents relatively happy. Recognizing this, Roberts knew he needed to convince not just the senators on the Judiciary Committee to support him, but the broader public that elected them. As his professional qualifications were clearly in order, the only question remaining was whether he would serve as a fair and impartial judge, regardless of his conservative philosophy.

One could approach this in a number of ways—by citing cases and legal writing that indicated a balanced, nonideological approach, or with character witnesses, or by specifying what he thought about key precedents on controversial issues. For the most part, Roberts used his umpire analogy to sidestep the pitfalls of specificity, which would have inevitably alienated senators on either or both ends of the political spectrum. The analogy overcame this challenge by transmut­ing a judge into an umpire. Umpires are fair. Therefore Judge Roberts, like an umpire, must be fair.

But what is fair? Fair is a subjective abstraction—an arbitrary de­termination that depends on individual perspectives and cultural norms. But absent details of how Roberts might decide specific, hypo­thetical cases, “fair” took on the broadest of meanings to become the perfect, idealized abstraction.

4. Tell a Coherent Story

As humans, we generally dislike uncertainty. To address this dis­like, we construct coherent stories to help us structure the constant flood of incoming data we encounter, and then infer meaning from those stories. Over time, such stories cohere into general models, often described as experience, that enable us to make more effective deci­sions. Even gamblers at the racetrack, who derive a thrill from betting, construct narratives to justify their wagers and, at least emotionally, reduce their sense of uncertainty. Often it’s just a simple story—maybe that a horse named Thunder’s Echo has run well on wet tracks re­cently, and since the day’s forecast calls for rain, Thunder’s Echo is obviously a good bet to win, place, or show in the ninth race at Saratoga.

How many other horses are running? Twelve. What other factors could come into play? Innumerable, many of them random. Does that matter? Not to the gambler who has constructed a useful story to pre­dict how events will unfold. And in a sense, we are all gamblers to a certain extent because we need to make decisions in a world of incom­plete, inaccurate, and inconsistent information. In an uncertain world, stories offer us emotional reassurance, and coherent stories offer more reassurance. And as the psychologist Daniel Kahneman notes, “It is the consistency of the information that matters for a good story, not its completeness. Indeed, you will often find that knowing little makes it easier to fit everything you know into a coherent pattern.” As such, people are prone to exaggerate the coherence of what they encounter, often at the expense of accuracy.

Coherent stories are easier to grasp. And when stories are easier to grasp, listeners are more apt to accept both the storyteller and their story’s conclusions as credible. Returning to the judges-are-like-umpires analogy, Roberts offered his audience a coherent story. Not a complete story, by any means, for he omitted the relevant and disqual­ifying difference between judges and umpires. But since his story was coherent, it was much more credible.

5. Resonate Emotionally

Analogies that involve emotions generally fall into two broad cat­egories. The first includes analogies about emotion, such as: “Anger is a hungry furnace; one is wise not to stoke it.” The second includes analogies that generate or evoke specific emotions, often surprising the listener, making them laugh or making a comparison that is deliber­ately positive or negative. While analogies that evoke emotion in lis­teners are not always so useful in pursuit of innovation, such manipulation often plays a critical role in persuasion.

Roberts’ judge-as-umpire analogy falls into this second category, as it evokes the positive feelings generally associated with baseball, in­cluding a vague sense of fairness, a nostalgic reverence for tradition, and the emotional satisfaction of a transparent world whose rules are clear and outcomes final. For those evaluating the Supreme Court nominee, such emotions were the opposite of provocative; in a nation still exhausted from the divisive acrimony of the previous year’s presi­dential election, they struck a reassuring note.

Emotions, once triggered, are like a genie released from a bottle—hard to recapture and cork. And given that emotion often trumps rea­son, this is one reason why analogies can be so hard to parry. That is, in addition to whatever intrinsic logical parallels analogies may reveal or assert, the most persuasive analogies also make an intuitive, emo­tional appeal that often transcends logic. And as noted earlier, the brain tends to work hard to defend its intuitions against logical coun­terarguments, even to the point of discarding evidence that contradicts its preferred conclusion. As Kahneman notes, “When people believe a conclusion is true, they are also very likely to believe arguments that appear to support it, even when those arguments are unsound.”

An astute observer will note that the five elements of Roberts’ analogy—using the familiar to explain something less familiar, high­lighting similarities and obscuring differences, identifying useful ab­stractions, telling a coherent story, and tapping into resonant emotions—overlap to a certain degree. This is quite common. In fact, the most persuasive analogies exploit such overlaps because they not only amplify the effect of any given element but also complicate rapid deconstruction, especially in the heat of an argument. 

John Pollack is a former presidential speechwriter. The above excerpt is from "Shortcut: How Analogies Reveal Connections, Spark Innovation, and Sell Our Greatest Ideas," reprinted by arrangement with Gotham Books, a member of Penguin Group (USA) LLC, A Penguin Random House Company.

By John Pollack

MORE FROM John Pollack

Related Topics ------------------------------------------

Books Editor's Picks John Roberts Language Political Messaging Robert Bork Scotus Supreme Court