The umpire metaphor got thrown around by John Roberts during his Supreme Court hearings a few years back. NY Times editorial takes this idea to task, especially after an umpire blew a call and spoiled a perfect game the other night. Former Justice Souter gave a commencement address at Harvard and takes a critical look at so-called 'originalist readings' of the Constitution.

The other was former Justice David Souter’s brilliant demolition of the umpire metaphor in his commencement address at Harvard last week. It is hard to imagine a better preparation for the confirmation hearings of Elena Kagan later this month.

Justice Souter, of course, is too courtly to refer by name to the chief justice or anyone else who believes justices leave their life experiences at the courthouse door and decide every case based on a narrowly historical “fair reading” of the Constitution. But his target was clear. Justices have to understand the “meaning” of the facts presented to them, he said, going far beyond the objective sense on the printed page. And there is only one way to fully understand that meaning:

“The meaning of facts arises elsewhere,” he said, “and its judicial perception turns on the experience of the judges, and on their ability to think from a point of view different from their own.”

Only by bringing to bear an understanding of the human condition can a justice choose from among the conflicting values of the Constitution when deciding a case, Justice Souter said. There was no easy, originalist way to decide the Pentagon Papers case brought by The New York Times in 1971, he said, because it required choosing between the principles of the First Amendment and national security. And when the court decided in 1954 that racially separate schools were not equal, it understood the impact of segregation in a way that the justices of 1896 did not when deciding Plessy v. Ferguson.

The senators who will soon decide Ms. Kagan’s nomination to the court should read Justice Souter on life experience in a changing world, and his appreciation of complexity. But more important, we hope the speech emboldens Ms. Kagan to speak her heart before the Senate in a way she has never done in public, which perhaps was Justice Souter’s intention. As the speech showed, rigid neutrality is not only disingenuous, it is a hindrance to proper decision-making. Certainty is an illusion, he said, quoting Oliver Wendell Holmes, and simplicity “devalues our aspirations.”