Let us, as lawyers say, stipulate that the president is a gentleman and a scholar. He is not, however, a reliable baseball historian. Introducing Sonia Sotomayor, he suggests that she "saved" baseball by her injunction ending the 1994–95 strike. Not exactly.
The basic premise of American labor-relations law is that conflicts between employers and employees are often messy, but it is generally best to assume that the two parties should be allowed to battle until reason, assisted by exhaustion, produces a settlement. Baseball's strike began Aug. 12, 1994, and Sotomayor ended it March 31, 1995, by effectively siding with the players' union. She thereby spared it the need to make significant compromises. This was not (in Obama-speak) judicial empathy for downtrodden labor against jackbooted capital. The 762 players' average salary in 1994 was $1,154,486.
What followed Sotomayor's intervention were seven years during which baseball continued living with an unreformed, dysfunctional economic model. Measured by payroll disparities and their consequences between the white lines, particularly in postseason competition, they were seven years of deteriorating competitive balance. Sotomayor, a Yankees fan, presumably did not know when she sided with the union that one of its fundamental objectives was to protect the Yankees' ability to spend, which the union correctly thought pulled up MLB's pay scale generally.
Beginning in 1998, the four-person Blue Ribbon Commission on Baseball Economics (Paul Volcker, former senator George Mitchell, Yale president Richard Levin and this columnist) studied the economic disparities that underlay competitive imbalance. The commission's recommendations (e.g., more revenue sharing and a competitive-balance tax on team payrolls over a certain threshold) became the basis of the owners' proposal in the 2002 collective bargaining. Without judicial supervision, and for the first time since 1972, the union and owners reached an agreement without a work stoppage. Since then, competitive balance has improved dramatically: Baseball has had six different winners in the last seven World Series. Today, the players' average salary is $3,233,599.
Sotomayor's confirmation is as certain as the Yankees' appearing in the World Series used to be. En route to her apotheosis, however, she should be asked some questions not related to her salvation of the national pastime. Here are two:
The Fifth Amendment says: "nor shall private property be taken for public use without just compensation" (emphasis added). All state constitutions echo the Framers by stipulating that takings must be for "public use." The Framers, parsimonious and careful with words, clearly intended the adjective "public" to narrowly circumscribe government's power: Government could take private property only to create things—roads, bridges, parks, public buildings—directly owned or primarily used by the general public. In 1954, the Supreme Court broadened the meaning of "public use" to include combating "blight." But in 2005, in a radical unleashing of government, the court drained the phrase "public use" of any ability to deny government an untrammeled and life-shattering power to seize the property of individuals and businesses. It held that New London, Conn., did not violate the takings clause when it seized property of persons with modest incomes for the purpose of turning the property over to businesses that would pay higher taxes. So, Judge Sotomayor, what, if any, restrictions do you think the "public use" requirement puts on government takings?
Four days before Sotomayor was nominated, a federal district court in Florida struck a blow for freedom of speech. It struck down the state's "electioneering communications" law, which required community groups and educational nonprofits to register with the state and comply with complex bureaucratic regulations before they could advocate for or against Florida political candidates or ballot issues. Such burdening of political speech has metastasized in the wake of McCain-Feingold, the 2002 federal law that limits the giving and spending of political money, most of which is used to fund speech. It not only rations speech, it regulates the timing and content of it by imposing blackout periods—30 days prior to primaries and 60 days prior to general elections—when it is illegal for issue groups, from the National Rifle Association to the Sierra Club, to refer to or depict a federal candidate in a manner that can be construed by the government as intended to influence a federal election. So, Judge Sotomayor, is there an implicit asterisk attached to the First Amendment, such that the amendment really means that Congress shall make no law abridging freedom of speech unless government wants to regulate speech about the composition and behavior of the government?
Sotomayor can talk baseball on the bench with her fellow Princetonian, Samuel Alito, a Phillies fan. There is precedent: During a court session in October 1973, Justice Potter Stewart, whose Reds were playing the Mets, passed this note to Justice Harry Blackmun: "V.P. Agnew just resigned!! Mets 2 Reds 0."