[Peace-discuss] Sotomayor Criticism From Sports Angle

[Neil Parthun]

Sotomayor is a Sporting Judge
By Dave Zirin


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.

Solidarity,
   -N.

Neil Parthun
   Sports/politics writer, UC-IMC

"There are many victories worse than a defeat." - George Eliot

"They call it labor surplus / Market value poverty / But that which  
you do to the least of my brethren / So you do unto me." - Matthew Grimm

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