So the American media has decided to get pre-emptively offended about the possibility that Obama might nominate a Supreme Court judge who is not white and male because it might be a good idea to have a judge on the Supreme Court who is not white and male. (Post-Redding v. Safford Unified School District I’m not sure how anybody could be opposed to the idea of more women on the Supreme Court, but then again I live in a country where half the Supreme Court is female anyway.)
Others have already pointed out that the Supreme Court is not exactly a diverse body (seven old white guys, one old black guy and one old white lady, all of whom went to either Harvard or Yale, all of whom served as an appeals court judge) and that diversity in a judicating body is actually, you know, a good thing because breadth of experience allows a judiciary to consider more perspectives with greater fluency. But people arguing this as good reason to not worry about the needs of the white guy – and bear in mind that I am a white guy – are wasting their breath, not just because those determined to complain about quotas and affirmative action will do so regardless of reason or fact, but because it’s an irrelevant argument.
This can’t be repeated enough: at this high a level of competency, there is never, ever a “best candidate.” There isn’t even a “best candidate whose political beliefs are ideologically akin to my own and who is not likely to stray from those beliefs.” There is always going to be a list, and if you’re picking a candidate from that list they’re almost certainly going to be qualified for the position.1 The idea that you can pick the best candidate out of the pack is a fantasy, and almost universally it’s a fantasy exercised by white people who get upset about the specter of affirmative action. It’s time to get over that fantasy and just make the court a more diverse institution that at least somewhat reflects the composition of its people, because there is no Better White Guy Judge waiting in the wings who will be a de facto better choice than the Black Guy Judge, Hispanic Lady Judge, or Asian Eunuch Judge.
- Just because I think Antonin Scalia is ideologically dishonest doesn’t mean he’s not qualified to be a Supreme Court judge. He’s just a bad one. [↩]
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Well, clearly there’s a best candidate for any job, and I’m it. And in spite of that, I don’t have the best job in the world. That means that the universe is broken, and I’m only glad that there’s an Internet so can complain about it. A lot.
Also, those crazy cat cartoons!
I nominate Flapjacks to be the next Supreme Court judge.
Ezra Klein had the best line on Scalia:
“… people always point to [Scalia’s] ‘judicial brilliance.’ But he’s only ‘brilliant’ in the capacity to arrange any given set of circumstances into an argument in favor of what you knew he was in favor of before the circumstances were given to him.”
Oh, MGK, do elaborate on Scalia…I’d love to hear more thoughts on him.
I’ve got a good feeling about Harriet Miers – it might just be her year.
Thing about Miers is, the joke really ended up on liberals in that case. Miers, whatever else might be said about her, had the look of wishy-washy ideology about her. Instead, “victory” in torpedoing her nomination led to the appointment of the doctrinaire Samuel Alito.
You say that, but Presidents have fielded some real duds and lamers in the past. Take Robert Bork, for instance. I mean, I’m not suggesting the man isn’t “smart” enough to be on the court, but he clearly wasn’t smart enough to make it through a Senate hearing without jamming both legs into his mouth up to the knee. Or Harriet Miers, who wasn’t exactly the shining bastion of intellect on the Bush judicial team (not that they really listened to her anyway). Or Clarence Thomas, a justice that hasn’t asked a question in what? 3 years?!
I could even argue that David Souter was a bad pick, if only because he departed so dramatically from the party that selected him.
So, in that regard, I would argue that there are some supremely bad choices available within the standard pool of potential SCOTUS judges and that, if intellectual capacity was measured first by intellectual honesty, we have been nominating far more failures than successes over the last thirty years.
Whether you’d regard any given candidate as “better” than another largely depends on how you want a given case ruled on. But there is no doubt that all potential candidates are not created equal.
Conservatives torpedoed the Miers nomination. Democrats were about as enthusiastic as you can expect given their options. If you remember, she never even made it to the Senate for questioning.
But Miers was a win for Conservatives because she emerged as a massive wedge issue between the radical base and the independent crowd. Suddenly, Bush’s own pet lawyer wasn’t good enough for the Supreme Court. And people couldn’t help but notice it could be because she was a woman.
Then, a year later we get the Lilly Ledbetter decision that comes down 5-4, with former Justice Sandra Day O’Conner making it very clear where she stood on the matter. And you can’t help but wonder if maybe a Miers instead of an Alito would have tipped that decision.
Democrats rode Ledbetter to the bank in ’06 and again in ’08, as overturning that decision with legislation was something of a hallmark of the Dems local campaigns. Miers on the SCOTUS could have defused that entire issue. Making Republicans defend against it was electoral gold.
I’m not sure how Redding v. Safford Unified School District ties into this…
The existence of unsuitable candidates doesn’t change the fact that the “best” candidate doesn’t exist. Bork and Miers aren’t the same thing as selecting from among a group of equally talented candidates and picking one on the basis of diversity.
Go read the oral arguments. The eight male judges – even the liberal ones – are all ridiculously callous to the fact that a teenage girl was strip-searched. Ruth Bader Ginsburg is pointedly not.
See, MGK, as a Canadian, and thereby, nice, you discount how filled with blithering idiots the American Left is.
The voices on the left don’t actually care if someone is qualified, as long as they fit their personal checklist. As soon as Suder said he was gone, there were calls “it better be a woman!” “it better be a Latino!” “It better be a gay person!” Not, it should be specific person X, or it should be Lawyer Y”…(specific names came later to fill in the blanks)
America is a country where someone on the Right said “Hey, they like Hillary…let’s get a brain dead vagina on our ticket and that’ll help us win!”..and rather then that being laughed into oblivion, it was met with “That’s just crazy enough to work!” and on some level it did (just not as much as they hoped).
The voices on the Left get so focused on their criteria rather than qualifications they give fuel to the mouth breathers on the Right.
Now, I’m not concerned that Obama and his crew won’t make a list of very qualified people (Though I’m concerned he’ll go with someone to far right to continue in his misguided course of placating the ever more worthless Right).
Which “voices on the left” were calling for Generic Gay Person, Random Latino, or Anonymous Woman to be appointed to the Supreme Court? I’ll confess that I do not read those blogs.
Are you sure you’re not thinking of the Clarence Thomas nomination?
–d
That’s something I’ve noticed in discussions of affirmative action, as well. Generally the unspoken assumption (possibly some people actually speak it) is that any white person is automatically a better candidate than the hypothetical black person who would get in with help from affirmative action.
I can’t speak for MGK (…yet), but I’m currently reading a book called Original Sin: Clarence Thomas and the Failure of Constitutional Conservatism. So far, it has been examining how so-called strict originalists like Thomas and Scalia are rather selective about what subjects they actually choose to be originalist about.
Scavenger, you’re missing the point. It’s entirely valid to say “it should be a woman,” or “it should be a Latino,” because there are no shortage of qualified people among all ethnic groups and genders who can fill a position on the Supreme Court.
It’s not outrageous to suggest that the Supreme Court reflect the ethnic makeup of the country it supposedly represents, and once you establish that there are qualified candidates of all ethnic backgrounds and genders – and this is so obvious a point as to not be worthy of discussion – then the fact that the Supreme Court is almost entirely white and male and for its entire existence has been practically entirely white and male should engender a common-sense reaction of “hey, MAYBE, just maybe, if there is no shortage of talented candidates for the job, then perhaps the next justice should not be white and male so as to reflect the diversity of the country, provide legitimacy to the institution, and give the court additional breadth of experience which is something it traditionally values.”
Once you understand this point, then saying “it should be person X” is a meaningless requirement
The right-wingers would try to find a way to find fault with Obama’s decision even if he nominated that crackpot Roy Moore.
Well spoken.
While I DO think Scalia is intellectually dishonest (actually, I think originalism is a load of crap. Obsidian Wings has a good series of posts about why) if you mean by that “he fits his argument to fit the result he wants” you could lay the “political expediency” criticism on just about any justice that has served on the Court.
Of course, if you want to call Scalia intellectually dishonest because he rails against even acknowledging foreign (to the US) sources of law or legal reasoning, but is completely at ease with referencing Jack Bauer as a influential source of policy on torture, have at it.
I think Obama should nominate Michael Schiavo, because the results would be awesome.
Candidates can be rated against each other on a variety of merits – their raw intellect, their legal history, their credentials, their political savvy, their partisanship – and given any two candidates, I think you can find a break point on at least one of those issues where one candidate is categorically “better” than the other.
I’ll concede that its rather silly to look for the “Holy Grail” of candidates, because the difference in Anthony Scalia, John Roberts, and Samuel Alito (for instance) is fairly negligible. Replacing Renquist with Roberts was generally acknowledged as a push even though I’m sure you could find some attribute that made one superior to the other.
But when you take a candidate like Bork, who would have made an admirable Scalia impersonator, and stick him in front of a Senate board, you’ve clearly got a candidate that is inferior to Scalia even if they would be voting like they were joined at the hip. Because Scalia made it through his confirmation and Bork didn’t.
In that sense, Obama does have a lot riding on his decision. Picking a middle aged hispanic woman on Appeals versus a young black lawyer versus an elderly white retired Senator will have different political and – down the road – legal results. Even if all of them are “qualified” for the highest court, they’re not all the same by any stretch.
Zifnab, “merits” is in the eye of the beholder. I clearly remember the Bush administration pushing Meyers on the basis of her lack of experience as a judge (ironically to provide diversity on the court). One of the “merits” of Roberts had nothing to do with his legal acumen, it was that he was young and health and expected to be a conservative voice as Chief Justice for a generation or more.
So a lot of people have a lot opinions about what should matter in a justice. The history of the Court suggests that justices can wander pretty far afield of their positions after an appointment. I think this actually plays to Obama’s strengths as a manager, since he seems to be a good evaluator of talent and intelligence.
Oh, and I think it’s Scalia who was the Bork impersonator, at least in terms of legal thought. Bork was one of the early pioneers of the ‘origionalist’ philosophy, such as it is. Bork was just more outspoken about his crazy views prior to his nomination and got scuttled as a result.
Wow, this is the best defense of Affirmative Action (in judicial picks or otherwise) that I think I’ve ever heard.