Fallacies of Bestness
Jeffrey Rosen has a cute question for Eric Holder:
Do you agree with Mr. Obama’s implication that the Supreme Court needs someone who will side with the powerless rather than the powerful? What if the best nominee happens to be a white male?
I think this nicely underscores a totally fallacious way of thinking about the Supreme Court. Rosen’s question implies that it’s sort of akin to putting together an all-star hitting lineup. You want the nine guys with the best OPS+ available. And if you need to water that lineup down to make sure there’s a shortstop on the list, well, you may have your reasons for doing so but you’re unquestionably watering down the ability of your hitting squad.
But the reality is that ability has little to do with Supreme Court appointments. It’s not that ability is irrelevant—you couldn’t just pick anyone. You want a person who’s familiar with legal reasoning and legal writing, who’s worked with constitutional caselaw, etc. But there are way more than nine people in the country who possess the relevant qualifications. And as far as qualifications go, that’s about all there is to say. It’s not as if were Ruth Bader Ginsburg to step down it would become crucially important that the “10th best” judge in the country be elevated to the top nine. What would that even mean? You’d need her replacement to be up to the task but after that other kinds of considerations take over. And it’s completely legitimate to think that seeking a modicum of diversity on the Court is an important consideration. It’s been traditional for decades now to have at least one Jewish member of the court. That may cease to be demographically tenable at some point, but the idea of having one member of a minority religious group on the bench both enhances the legitimacy of rulings on religious freedom cases and ensures that a certain perspective is present. Similarly for members of racial minority groups. And, of course, the same holds for women.
For a court with no women on it to be making rulings about gender discrimination issues would look—and be—absurd. Indeed, given that women are 51 percent of the population, just one woman seems pretty dubious. So if you think it’s desirable to increase the diversity of the court—which I certainly do—then by definition it’s not going to be the case that “the best nominee happens to be a white male.” Of course if there were no women (or Hispanics) out there who were up to the job, that would be a different thing. But I don’t think anyone’s ever seriously tried to argue that. There are plenty of women out there right now serving in the kind of positions that qualify someone for a Supreme Court gig.
48 Responses to “Fallacies of Bestness”
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January 15th, 2009 at 11:18 am
Matt
There is no tradition of having a jewish judge for the sake of his jewishness. The reason why there has been a jewish presence on the Supreme Court for decades, is because of the large proportion of Jews at the top of the legal realm.
Keith
January 15th, 2009 at 11:19 am
the idea of having one member of a minority religious group on the bench both enhances the legitimacy of rulings on religious freedom cases and ensures that a certain perspective is present
Yes, that principle has certainly worked well with Justice Clarence Thomas, who has ceaselessly and tirelessly worked to advance and defend the interests of African-Americans across the nation.
January 15th, 2009 at 11:29 am
It’s been traditional for decades now to have at least one Jewish member of the court.
Wait, what? Is there actually a custom around this — as if, when the only Jewish justice retired, the President is expected to appoint another one to replace him? I’d love to see evidence that this was the case… I’d be very surprised.
January 15th, 2009 at 11:29 am
Actually there were no Jewish justices from 1969 to 1993.
January 15th, 2009 at 11:32 am
Right: It is true, however, that the practice you describe prevailed for several decades before 1969. Brandeis and Cardozo retired about the same time, one of them (I forget which) was replaced by Frankfurter, Frankfurter was replaced by Goldberg, and Goldberg was replaced by Fortas. When Fortas left, the streak stopped.
January 15th, 2009 at 11:32 am
It astonishes me that Rosen thinks the two parts of his question have anything to do with each other.
January 15th, 2009 at 11:39 am
look, the people who would make a criticism like the one you highlight don’t give a crap about your logical explanation. they want to whine about how minorities have it large over poor, oppressed white men. that’s it. there’s no larger point.
January 15th, 2009 at 11:39 am
Republicans, historically, have only Minorities who are willing to denigrate themselves. I think Bush actually likes Condi rice, but he’s denigrated her along with everyone else in his administration (and she was a willing participant)
January 15th, 2009 at 11:40 am
I missed this silly quote about Jewish representation:
“That may cease to be demographically tenable at some point.”
If your approaching this from a strictly diversity standpoint that position was reached years ago. Only 1.4% of adult Americans are Jewish. Of course the real reason Jewish individuals are overrepresented isn’t because of some non-existent tradition. Rather it is because Jewish Americans on average are over represented in all the elite levels.
January 15th, 2009 at 11:41 am
The correct answer: “I’m not sure if your implication is that white maleness prevents someone from understanding and empathizing with the weak and vulnerable if they are of anothe race, or that there aren’t any weak and vulnerable people who are white, but I find your question distasteful, and suggest we move onto more substantive matters.”
January 15th, 2009 at 11:41 am
Oh, and the other thing. What does the AG have to do with Supreme Court appointments? So why even ask this question at all?
Oh, because it’s fun to ask minorities about Affirmative Action or make them sound like reverse racists. No one would ever propose asking a white nominee a question like that, even though Hillary Clinton at state is just as relevant to the SCOTUS nomination process.
January 15th, 2009 at 11:42 am
true that Thomas’ presence has not been at all useful for the poor, disenfranchised or minority populations in general. but there is a specific reason for that – he was put on the court because he was a black person promising not to care about those things. he was Thurgood Marshall’s replacement! it was a deliberate slap in the face to black Americans to put a person like him on the court, and nothing more than window dressing for Repugs to at least try to talk about their “record of diversity”.
January 15th, 2009 at 11:43 am
What does the AG have to do with Supreme Court appointments? So why even ask this question at all?
Good point from example. I’m curious, has there ever been a tradition about consulting the AG about Supreme Court nominees.
January 15th, 2009 at 11:44 am
If your approaching this from a strictly diversity standpoint that position was reached years ago. Only 1.4% of adult Americans are Jewish. Of course the real reason Jewish individuals are overrepresented isn’t because of some non-existent tradition. Rather it is because Jewish Americans on average are over represented in all the elite levels.
I think the point is that there are now a sufficient number of people at the elite levels of the legal and political community from other, larger minority groups – East Asians, African-Americans, Latinos, South Asians, Arabs, Muslims – that efforts to maintain a diverse roster aren’t necessarily going to mean making sure there’s a Jewish appointee.
January 15th, 2009 at 11:49 am
Let’s call his question what it is: race-baiting. Holder is not an outspoken proponent of affirmative action (although I assume he does support it), and more importantly, ATTORNEY GENERAL DOES NOT APPOINT SUPREME COURT NOMINEES. But sure, denigrate the black guy.
January 15th, 2009 at 12:00 pm
A better question: what if there’s a case where the more powerful party is right on the merits, and the less powerful party is wrong?
January 15th, 2009 at 12:03 pm
Apparently it’s always relevant to ask black people about racial matters, regardless of the topic or context. It was like this during the campaign – if a black person somewhere did something bad, the press always found it relevant to get Obama’s reaction.
January 15th, 2009 at 12:03 pm
Actually there were no Jewish justices from 1969 to 1993.
In other words, there were no Jewish justices appointed when the R’s were doing the appointing (Carter didn’t get to make an appointment).
January 15th, 2009 at 12:12 pm
Strikes me as a sort of argument for affirmative action.
Not disagreeing, mind you, but couldn’t the point have been more succinctly put by this guy?
January 15th, 2009 at 12:17 pm
I just wanted to reiterate that Jewish Americans appointments are always merit based and have nothing to do with domestic politics
January 15th, 2009 at 12:18 pm
Why don’t we send Richard Posner to the Supreme Court? He’s the most respected jurist in the land right now.
January 15th, 2009 at 12:21 pm
I have a simple rule for who I would pick.
Will history look back and say that I made the right pick?
Marshall might not have been the best pick but it sent a very powerful message to put him on the Court.
Souter is a fine Justice but do you think Bush made the right choice?
If Bork had been confirmed and it turned out that he was fantastic then those of us who opposed his nomination would have been proven wrong.
Picking a black or a lefty or a kindergarten teacher might be a good choice. The pick has to be a reasonable choice to get confirmed but the President should be able to use his (at least it has always been ‘HIS’ so far) judgement and take other factors into account.
History will decide.
January 15th, 2009 at 12:22 pm
Shorter MY: I think Jennifer Palmieri would make a fine Supreme Court Justice.
January 15th, 2009 at 12:26 pm
Sorry about that. I’m snowed in and just felt like being a dick.
January 15th, 2009 at 12:30 pm
“it was a deliberate slap in the face to black Americans to put a person like him on the court”
So apparently, the only thing that would not have been a “slap in the face” would have been for Bush I to nominate a minority candidate who adheres to a broadly liberal interpetation of constitutional law. An interpretation with which Bush happens to disagree.
Um… why would he do that? Is it generally accepted that presidents appoint people who agree with the people they are replacing? Or is it generally accepted that presidents appoint people who agree with that president’s own positions?
Clearly, Bush was going to appont a conservative. Because, you know, he won the election, and that’s one of the spoils of victory. Was it so horrible that he went out and made an effort to find an African-American who happened to agree with him? I understand that you might not like Thomas’ views on jurisprudence, but to say that his appointment was meant as a “slap in the face” seems kind of goofy.
Fine. He’s not the African-American you would have appointed. But why would Bush have chosen such a person? Are there other broadly conservative African American’s who might have been better picks?
January 15th, 2009 at 12:45 pm
So apparently, the only thing that would not have been a “slap in the face” would have been for Bush I to nominate a minority candidate who adheres to a broadly liberal interpetation of constitutional law.
A competent, intelligent, decent conservative African-American judge would have been fine, too.
Picking someone like Thomas, and considering him to be a reasonable replacement for Marshall in their eyes merely because of his skin color, on the other hand, was a slap in the face.
Justic Al Sharpton, selected by Bizarro Mike Dukakis in an alternate universe, would have been a slap in the face as well.
January 15th, 2009 at 12:55 pm
I remain convinced that I am the best qualified nominee for the Supreme Court – and until others concede the sweet reason of that point I decline to discuss the matter further.
January 15th, 2009 at 12:58 pm
Questions like Rosen’s always seem, to me, to be implying that the best person for the job really will be a white male no matter what, and that picking anyone else entails a sacrifice for the sake of diversity.
But the thing is, proportional diversity or what have you is not only desirable for its own sake. Its absence suggests that something has gone awry, even from a raw meritocratic perspective. For instance, if there are zero blacks in the U.S. Senate, that’s a problem for lots of reasons. One of those reasons is that it means almost certainly that those 100 individuals are not the 100 most qualified people for the job. (Not that anyone suspected otherwise, but I’m assuming that hypothetically we would want the 100 best in there.) The chances of the 100 best candidates all being white are pretty low; we would expect a normal distribution. So the lack of diversity tells you that there’s some kind of bias at work (consciously or under the surface) that is actually PREVENTING you from getting the most qualified people, since being white is not really a qualification, despite what some might believe.
January 15th, 2009 at 1:05 pm
Dude, you know what OPS+ is? Wow. Though your analogy falls flat and you realize it (good attempt at saving it though). And you forgot about defense.
January 15th, 2009 at 1:23 pm
One of those reasons is that it means almost certainly that those 100 individuals are not the 100 most qualified people for the job. (Not that anyone suspected otherwise, but I’m assuming that hypothetically we would want the 100 best in there.) The chances of the 100 best candidates all being white are pretty low; we would expect a normal distribution. So the lack of diversity tells you that there’s some kind of bias at work (consciously or under the surface) that is actually PREVENTING you from getting the most qualified people, since being white is not really a qualification, despite what some might believe.
The question is, if it were a pure meritocracy, what percentage would be black? Using racial proportions as evidence of discrimination is not bad in and of itself, but it is a bad thing when you don’t have any evidence to determine what the percentages should be and you jsut pick a number out of your rear end.
0 black Senators may well be too low, but there is no reason to believe that the proportion of blacks in the Senate (or any other institution) ought to be exactly the same as their percentage in the population, because there is no reason to assume that qualifications for any particular position are distributed equally among racial groups. In order to actually make a reasonable case, you need some way to estimate what the percentage of qualified people actually is.
That’s the problem with a lot of affirmative action, is that it automatically assumes that for every 100 qualified people, 12 are black, 1 is Jewish, 13 are Hispanic, etc.
January 15th, 2009 at 1:25 pm
But the reality is that ability has little to do with Supreme Court appointments. It’s not that ability is irrelevant—you couldn’t just pick anyone… You’d need [Ginsburg's] replacement to be up to the task but after that other kinds of considerations take over.
Nitpick – he didn’t say “best qualified,” he said “best.” Rosen is asking what if there were no qualified female candidate whose judicial philosophy was close enough to Obama’s own?
January 15th, 2009 at 1:25 pm
Obama’s ‘necessary condition’ if you want to call it that, is a person who “will side with the powerless rather than the powerful.” That condition does not preclude white people or men (or their intersection). It may mean ‘fewer’ but it can’t mean ‘zero’ unless you are Kathleen McKinnon or Louis Farrakhan. I can only hope Holder gets such a ridiculous question.
also, wtf does “Mr. Obama’s implication” mean? Does he mean “I have inferred from Obama’s statements that he wants this kind of person”? Or does is he quoting? The lack of precision in this kind of language makes me a little sad, given he’s allegedly both a lawyer and an editor.
January 15th, 2009 at 1:53 pm
The chances of the 100 best candidates all being white are pretty low
I don’t disagree with your point at all, but I just wanted to point out that, pending the seating of Burris and Franken, and before the resignation of anyone moving into the Executive branch, there 93 non-Hispanic white U.S. Senators. 2 seats are vacant, one Senator has Japanese ancestry, one has Chinese and Hawaiian ancestry, and 3 are white but of Hispanic ancestry.
January 15th, 2009 at 2:24 pm
Stephen Myles Says:
January 15th, 2009 at 12:18 pm
“Why don’t we send Richard Posner to the Supreme Court? He’s the most respected jurist in the land right now.”
1) BWAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA!!!!!!!!!!!!
2) F*ck anybody who respects Posner. His only skill is wh*ring for the rich.
January 15th, 2009 at 3:39 pm
Good argument Barry. You’ve thoroughly demonstrated your knowledge of Judge Posner’s jurisprudential thinking, and why you disagree with it. I’m convinced.
January 15th, 2009 at 5:22 pm
I’m convinced as well.
Nominate Barry.
January 15th, 2009 at 5:31 pm
So apparently, the only thing that would not have been a “slap in the face” would have been for Bush I to nominate a minority candidate who adheres to a broadly liberal interpretation of constitutional law.
Marshall was a legal giant. Thomas was a barely competent boob. In fact, in many ways it’s unfortunate that the Anita Hill matter became the focus of his nomination hearing, because otherwise there might have been more attention payed to the sheer paucity of his qualifications for the Supreme Court. The notion that he was among even the top 1000 people qualified for the USSOC is a joke.
And the idea that a) had he been a “liberal” candidate, or b) had he been white (with the same qualifications) – and been nominated by GWB is a joke, and thus, a slap in the face to Thurgood Marshall.
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