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.