Sotomayor is a Sporting Judge
Reporters, pundits and conservative think tanks are picking through every last detail of Supreme Court nominee Sonia Sotomayor's professional life. But let the other journalists, bloggers and assorted trolls attempt to divine her views on abortion, the death penalty or campaign finance. We can learn all we need about Sotomayor's politics and perspective by examining her decisions in sports.
It was Sotomayor who in 1995 briskly and gruffly ruled against the owners of Major League Baseball, quashing the lockout that infamously canceled the last one-third of the 1994 baseball season, including the World Series. Depression and two world wars couldn't cancel the series, but a particularly seething group of billionaires were ready to do just that, all for the almighty purpose of snapping the spine of a baseball players' union that had cleaned their clock for a generation. The bosses were ready to destroy the game in order to save it, fielding replacement players and doing everything short of lacing hot dogs with rat poison. But Sotomayor stepped in, put the owners on ice and the game back on the field.
At the time, baseball writers went canine in full-throated praise. Philadelphia Inquirer columnist Claude Lewis opined that Sotomayor would be mentioned in baseball lore, in the same breath as Joe DiMaggio, Willie Mays, Jackie Robinson and Ted Williams. Barack Obama even mentioned this fact in his press conference announcing her nomination, saying she had " saved baseball." Her decision was pitched as a pro-union response to the owners, saying that they had "placed the entire concept of collective bargaining on trial."
Obama's casual reference to Sotomayor's judicial fastball was enough to set off tweedy baseball weenie George Will. Will, who from appearances probably never got to play as a child, huffed, "in fact, what she did was take sides, took union's side against the management, and in so-doing, wasted 262 days of negotiations. That, far from saving baseball, consigned baseball to seven more years of an unreformed economic system, which happened to be the seven worst years in terms of competitive balance." This is a reference to the Yankees' winning four titles from 1996-2000, which clearly had more to do with a court ruling than anything done by Derek Jeter.
Sotomayor, Will says, "delayed the restructuring of baseball. So I would say that far from her saving baseball, as the president says, that in fact, baseball thrives now because we got over the damage that her judicial activism did in that strike."
This is idiotic. To say that there were "262 days of negotiations" is like calling the Civil War a verbal snit. The owners wanted to crush the union and had gone off the beam. If anything, Sotomayor wasn't a labor-friendly judicial activist as much as a safety net for the baseball bosses as they spiraled further from reality.
ESPN's Peter Gammons had a smarter take:
“She didn't necessarily save baseball; she saved the owners from themselves. The people who tried to rig the system with collusion, pay-for-performance and the artificial attempt to implement their own labor system were, as usual, ill-advised and leaderless. When Sotomayor forced the game to resume and charged that they bargain in real faith, baseball under Selig went from a $1.3 billion to $7.5 billion business.”
So whether Sotomayor's decision was good for baseball depends on what side you're on. But this wasn't the only time the judge made a controversial mark on sports. She also "saved" the National Football League from having to pay players before their time. In 2004, Sotomayor was part of a three-judge panel that ruled against Ohio State running back Maurice Clarett in his effort to overturn the NFL's draft-eligibility rules. The NFL's bylaws state that prospective players have to wait three years after high school before trying out for the NFL.
Clarett's attorney, Alan Milstein, said that the NFL was unreasonably restricting Clarett's right to make a living. And in an earlier decision US District Judge Shira Scheindlin had struck down the NFL's rules and said that Clarett could apply for the draft.
On appeal, it was Sotomayor ruling with the majority that sided with business as usual in the NFL. Once again she was brisk and ostensibly pro-union, saying that the NFL Players Association, which was standing arm in arm with the owners in the suit, had every right to restrict who could play.
"Those 1,500 players want to protect themselves," she ruled. "That's what unions do; they protect people in the union from people not in the union." Why is this case different?
But it is different. The NFL's draft rules are paternalistic regulations designed to keep players in college so they can build brand-name recognition and, to a lesser degree, their skills. This way, the league doesn't have to fund any kind of a minor-league system. Sotomayor ruled that this provision had been collectively bargained and was therefore above reproach. As Tommy Craggs wrote on Deadspin, "In recent weeks, conservatives have gone bark-at-the-moon loony over Obama's stated desire for a Supreme Court justice who rules with 'empathy.' The Clarett decision, at least, was anything but empathic--it was a cold-eyed and literal-minded ruling from a judge who is nevertheless destined to spend the next hundred news cycles being branded a fire-breathing anarcho-syndicalist by the idiot right."
Note the very instructive common thread in the 1995 baseball case and the Clarett case. In both, Sotomayor makes strong statements for union rights--that the baseball owners are challenging collective bargaining and that the NFL players' union has the right to restrict who plays. In both cases she is faithfully serving the interests of money and power. Sotomayor is a Yankees fan, which should just be a dead giveaway. Left-wing in theory, right-wing in practice--no wonder she clicked so smoothly with the current administration.
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Zirin wraps it up nicely:
"Left-wing in theory, right-wing in practice--no wonder she clicked so smoothly with the current administration."
Putting aside the absurdity of drawing on two decision to determine someone's outlook, there attempt to claim the decisions as "right wing" seem a little stretched.
MLB: How is ruling that the owners can't unilaterally impose new work rules right wing? Are you saying the more left wing thing would have been to let the owners the owners continue to unilaterally impose those rules?
NFL: The college rule may be stupid for a variety of reasons, but how is is exactly right wing? And if we accept the idea that employees of an organization get some control over the process of new hires, how is that more right wing than the owners having total control over the process?
Great column, Dave. The whole notion of unions = left-wing is a canard. Being in a union, as you cogently write, allows "collective bargaining" to take precendence over merit. This is why, in the public school system, we have wastes-of-space with seniority counting the days until they retire while fresh-faced kids out of college who would do anything for a placement have to wait tables.
Maurice Clarett is that fresh-faced kid, who would certainly have gotten by on merit -- with one of the greatest freshmen seasons in history, if not the greatest for an RB, on his resume -- who was shut out by the collusion between the NFLPA and the owners. Not surprising he ends up in prison, his dreams shattered, with all his earning power and fame in the toilet due to arbitrary regulations. So, Sotomayer fails on the NFL account.
As for MLB, I don't see what Sotomayor did besides forcing ownersto do the union's bidding. I'm not sure, Dave, if there is a direct corrolary between baseball rising from a $1.3 billion to $7.5 billion industry. Wouldn't a better reference be the extreme growth in wealth in paper for EVERY industry, until, well, last year? Which is why Bobby Abreu now makes $5 million instead of $16 million.
It will be interesting to see what happens in the future with a cap-less MLB. Will it end up like the NHL, with franchises going bankrupt all over the place due to players' costs exceeding the worth of the franchise? We may ultimately have 6 teams of 100 All-Stars (Yankees, Mets, Bosox, Cubs, Angels and Dodgers) and nobody outside of those four cities will care.
I think the MLB ownership and MLBPA better be careful or they will end up like what happened today to the world's largest automaker, who were killed by the competition and their own bloatedness. But hey, at least the union retirees will get their pension checks!
Jordan - The point was that the two sports decisions are evocative of Sotomayor's tendency to dress up right wing decisions in left wing gloss. In terms of the 1995 baseball decision, she did the right thing, but let's not pretend it was a union vote. It was a vote to save the game from the owners hell bent on destroying it.
The Clarett decision was horrible and self explanatory in many respects. The owners and the union were arm in arm on that one, with the NCAA smiling behind them.
dz
I have to respectfully disagree with you Dave. I think the effect of Judge Sotomayor's decisions was to empower the unions to represent their membership without telling the unions what their position should be. One might disagree with the unions' positions, such as in the NFLPA case, but the unions were empowered to represent the players vs management. We all know quite well that the right would like nothing more than to destroy and/or emasculate unions.
... does that mean you are okay with an extraordinarily talented kid like Maurice Clarrett being barred from playing in the NFL -- where he would have likely excelled -- due to the whims of veterans players who wanted to keep the status quo (no matter the inferior talent they represented)?
What should Clarrett have done, continue with another 2 years of indentured servitude in the NCAA, or go to NFL Europe or whatever and get paid a pittance? This is much worse than, say, Brandon Jennings -- or, from another aspect due to the NBA's mid-level exception rule -- Josh Childress, who at least are getting paid their worth in Europe.
Fact is, Sotomayor vouched for the unions over the individual rights of a prospective player. That is garbage and, to use a loaded term honestly, un-American.
It sometimes seems to me that those vouching for unions have never actually *been* in one -- or have a close family member in one -- and thus do not know first- or second-hand what they really are in terms of leadership and fairness to their *members*, let alone the outside world. The unions of the 21st century aren't all that some (progressives) think they are.
"does that mean you are okay with an extraordinarily talented kid like Maurice Clarrett being barred from playing in the NFL -- where he would have likely excelled"
He would have excelled at 20, when he couldn't even make a roster at 22? Nonsense. Clarret, and fellow dropout Mike Williams are good examples of why the NFL was being sensible demanding a that players prove themselves before turning them into millionaires.
The question with unions is not whether you agree with a specific decision or position of the union. Of course you won't always agree with the union. There's also potential for abuse of power by corrupt union officials. Nothing's perfect. The question is whether you think there is a need for workers to bargain collectively for workers rights. Individually, workers have been pawns to use, abuse and discard by corporate management. Collectively, when represented by unions, workers have made tremendous gains in working conditions, benefits, and pay. MLB is one example of how effective union representation benefited workers that were once chattel property. And, the entire industry has prospered because of the partnership between management and labor.
As for the NCAA, those players could use a good union. Where is our modern-day Marvin Miller?
The NCAA players need their Marvin Miller in the worst way. And yes, the Clarett case was about ownership as much as the union as much as the NCAA keeping a sclerotic system in order.
I definitely agree with your analysis that the Black face of the American capitalist empire has done little to nothing to change the material realities of the masses in this country. However, your analysis of the MLB confuses me. It seemed that you were seemingly praising Sotomayor's decision until the conclusion of your article. What would have been a more humane, justice oriented decision? I also agree that the NCAA-NBA/NFL system is exploitative. What would be your idea of a more liberatory system?
P.S.: Just bought A Ppl's history of Sport, looking forward to an interesting read.
I agree with many of the points made regarding Clarett's eligibility and Sotomayor's decision. However, I don't think it is fair to place all the blame squarely on Sotomayor. This may seem counterfactual, but I wonder if Clarett would have attempted to enter the NFL draft if he was not chewed up and spit out of the neo-plantationist climate of Division 1 football. Clarett was accused of receiving preferential treatment in his academic work, and denied the right to attend the funeral of someone close to him. He was finally suspended for receiving improper benefits from boosters and other leeches of Division 1 programs. Its funny how someone like Clarett was promptly suspended and swept under the rug as a result of those allegations. I think Clarett's attempt to enter the NFL draft reveals a lot more about the issues of big time college football than Sotomayor's political and judicial philosophy.
Nonetheless, Sotomayor did reinforce many of the oppressive and harsh labor controls in the NFL, but she did not create them.
Nik - It's a good question. Sotomayor's decision on the 1995 baseball strike was the "correct decision." But that doesn't mean that it was a decision motivated by her love of labor unions or any secret radical leanings. It was done to save the game from owners who at the time were operating like they were one can short of a six pack.
She's perfect for Obama...talk left, act right. Her cases all seem to be decided totally by the book, with no nuance or regard for specifics of the situation. The labor movement spans the whole political spectrum, its a false assumption to say that because she rules on the side of labor that it is somehow left wing. She wouldn't be supporting the left if she ruled in favor of Andy Stern's SEIU, the prison guards union, the MLBPA or the NFLPA. But fawning Dems and frothing Repubs would think she was. Classic Obama vagueness.
DreBly sums it up perfectly...
So does Noam Chomsky:
"Barack Obama represents a blank slate that his controllers can write whatever they want to on that slate."
And Mumia Abu Jamal sums up "Obamatics" deftly:
"When a cause comes along and you know in your bones that it is just, yet refuse to defend it--at that moment you begin to die. And I have never seen so many corpses walking around talking about justice."
Dave:
Perhaps you mean one bottle shy of a six-pack of Pinot Noir.
Sotomayor's baseball decision may not have proven 'love of labor unions' but it showed that labor has a legitimate standing, something that may be missed by reading NLRB rulings. The NLRB all to frequently treats labor as a second- story burglar rather than one who deserves a spot at the first story table.
Dave:
Perhaps you mean one bottle shy of a six-pack of Pinot Noir.
Sotomayor's baseball decision may not have proven 'love of labor unions' but it showed that labor has a legitimate standing, something that may be missed by reading NLRB rulings. The NLRB all too frequently treats labor as a second- story burglar rather than one who deserves a spot at the first story table.
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Dave Zirin is the author of the book: "Welcome to the Terrordome: The Pain, Politics and Promise of Sports" (Haymarket). You can receive his column Edge of Sports, every week by going to dave@edgeofsports.com.
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