The Supreme Court's Quotas: Putting Merit Last

by Pejman Yousefzadeh on May 6, 2009

Now that we are in the throes of selecting a new Justice to replace the retiring David Souter, we are confronted anew by demands that the next Justice satisfy a multitude of diversity requirements. These demands concern the next Justice’s gender, race, and religion, as per usual. But they also concern the next Justice’s sexual orientation, girth, and outlook on life. One shudders to think how President Obama is going to satisfy all, or even most of these diversity requirements; this may be one of the few times in the immediate aftermath of the Presidential election that John McCain is glad that he lost.

It would, of course, be far easier if the President could simply have a free hand to choose the smartest, most learned, most conscientious and most honorable Justice, and let bean counting come second. It would also be better for the country. Alas, instead of discussing the quality of the next Justice’s mind, we find ourselves mired both in the swamp of identity politics, and by the inapt qualifications the President himself has said will drive his selection of the next Supreme Court Justice.

We need the next Supreme Court Justice to be meritorious, talented, and knowledgeable. The cases the Supreme Court takes on are maddeningly complex, and though the docket has been reduced in recent years, Justices and their clerks still face crushing workloads. The Court will continue to address, among other things, complex securities and corporate law cases, cases touching on deeply wrenching and difficult medical ethics issues, and cases relating to legal issues that arise out of the war on terror. All of these responsibilities require a Justice possessed of sterling intellectual skills and a splendid education to carry them out competently and responsibly.

One would expect, therefore, that merit will be the primary qualification employed by President Obama and his Administration in finding and selecting a successor to Justice Souter. But no; instead, the forces associated with identity politics are helping determine the selection of the next Justice. To be sure, there is nothing whatsoever wrong with the achievement of diversity per se. Indeed, my ethnic and religious background alone ensures that I am the last person in the world to look my nose down at diversity. But diversity, if addressed, must be addressed after talent and merit are used to winnow down the number of potential candidates for a Supreme Court seat. The President may certainly choose a diverse nominee from a pool of talented candidates. It is, however, unacceptable for the President to have to choose the most talented nominee from a pool of candidates whose composition is first determined by the forces of identity politics. In this latter instance, the search for the most meritorious candidate suffers and is undermined.

Indeed, derision confronts attempts to make the nomination of the next Supreme Court Justice primarily a merit-based exercise. Consider Jeffrey Rosen’s piece in the New Republic about Judge Sonia Sotomayor, who sits on the Second Circuit Court of Appeals. Judge Sotomayor may well possess a whole host of outstanding intellectual qualities, but it is undoubted that her background as a female, Hispanic jurist help set her apart as a candidate for elevation to the Supreme Court. That may be unfair to Judge Sotomayor, and I am sorry for the unfairness, but had she been a white male, she would likely not even be under consideration.

Addressing the possibility that Judge Sotomayor may be nominated to take Justice Souter’s place, Rosen’s piece expresses concerns that she may not have the intellectual chops to be a good Supreme Court Justice. As I have written, there is reason to wonder about the accuracy of Rosen’s piece; he admits that his investigation into Judge Sotomayor’s talents and background is incomplete and he relies almost exclusively on anonymous sources to back up the suggestion that she may not be up to the job of being a Supreme Court Justice. At the same time, the degree to which Rosen’s piece has been attacked by defenders of Judge Sotomayor obscures the fact that it would be Judge Sotomayor’s task, if nominated, to prove to us that she possesses the talent necessary to be an outstanding Supreme Court Justice. Judge Sotomayor is not owed the job. She has to earn it and neither she, nor any other nominee, is entitled to any automatically favorable assumptions from the rest of us. Certainly, the fact that Judge Sotomayor may help achieve some “first” or other in the field of identity politics should not blind us to any deficiencies that may exist in her candidacy. Judge Sotomayor’s background may help make her story a compelling one, but ultimately, the President will not be nominating a biography to the Supreme Court. Rather, he will be nominating a jurist, who will be asked to lend talent, education, erudition, and wisdom to the resolution of a multitude of complicated problems and issues.

While the influence that identity politics and other secondary issues exercise over judicial nominations predates the Presidency of Barack Obama, it must be said that the President has helped encourage concerns that merit will be less of a driving force than it should be in the selection of the next Supreme Court Justice. As I have previously noted, the President’s own stated criteria for picking the ideal Supreme Court Justice focuses less on merit and more on finding a candidate possessed of what the President subjectively considers to be a laudable life outlook:

We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.

Heart and empathy are lovely things. I endorse their existence and proliferation in the world. But understanding and applying the law to a certain set of facts is a demanding intellectual exercise, first and last. One could have the most empathetic Justice in the world, but if that Justice botches the reading and application of the law at issue, all of the heart and empathy in the world will not save society from the deleterious consequences that would arise from adjudicatory errors.

Paradoxically, the President’s past as a teacher of Constitutional law at the University of Chicago Law School may work against the selection of an outstanding nominee. We are reminded that during his time at the Law School, Barack Obama left “fellow faculty members guessing about his precise views,” that the future President “was well liked at the law school, yet he was always slightly apart from it, leaving some colleagues feeling a little cheated that he did not fully engage,” and that “[h]is entire life, as best [as Richard Epstein could] tell, is one in which he’s always been a thoughtful listener and questioner, but he’s never stepped up to the plate and taken full swings.” Much of these concerns revolve around the fact that Barack Obama hardly spent any time attending the faculty workshops that involved debate and intellectual jousting between faculty members at Chicago, workshops that served as hothouses for the creation and cultivation of ideas.

To be fair, the future President had a multitude of jobs in addition to his responsibilities as a teacher, but that does not change the fact that those responsibilities, plus a desire to maintain a certain degree of discretion so that his political viability would not be harmed by an unduly passionate expression of political and legal opinion, kept Barack Obama from fully engaging in the intellectual life of the Law School.

Did this reticence on the part of the future President warp his appreciation for talent and merit? Is it possible that if Barack Obama were forced to vigorously debate the likes of Richard Epstein and Judge Richard Posner, if he had been more marinated in the scholarly life, if he had been more forced to rely on his wits and learning to prove his worth as a scholar instead of merely marking time until the next big political break, he would have insisted as much on his judicial nominees possessing brains and talent as he does on having them possess heart and empathy? No one, of course, thinks that President Obama wants to nominate a dummy. He certainly is no dummy; after all, he knows that if he selects a manifestly unqualified nominee, the nominee will stand a strong chance of being rejected, and his Administration will be embarrassed in the process. But it is depressing and disturbing that the President’s criteria for selecting an able jurist makes no mention of talent and merit, and focuses instead on having the nominee possess the right set of feelings. And it is depressing and disturbing that there are so many interest groups willing to push for the primacy of identity politics at the expense of merit.

It needn’t be this way, and it shouldn’t be this way. We are a little over a hundred days into the term of the first African-American President in the nation’s history. Whatever one’s feelings concerning the election of Barack Obama–and I certainly didn’t vote for him–his election proves that we, as a society, have taken a giant leap towards doing what Martin Luther King, Jr. asked us to do in the first place: judging people not by their classifications, but rather, by their talents.

That was a triumph for American society. We have an opportunity to effect a similar triumph with the selection of the next Supreme Court Justice. We ought not to waste it.

Read more and comment at Pejman Yousefzadeh’s blog.

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