In Defense of Identity

James Kirchick says he doesn’t like the idea of going out of one’s way to pick a gay or lesbian Supreme Court justice:

I respect Richard’s argument and agree that an openly-gay appointee would do wonders for the visibility of gay people in America. But I want to use the opportunity to make a broader, related point. Namely, that I oppose using a person’s sexual orientation as a job qualification for the same reasons that I oppose the privileging of a candidate based upon their race or sex: It boils individuals down to their immutable traits. The only aspect that Obama should consider as he weighs his options over the next few days is the candidates’ jurisprudence.

This sort of thing sounds incredibly high-minded and commonsensical, but I think it doesn’t stand up to much scrutiny. For example, everyone knows that a president is going to consider age and health as important criteria in picking his nominees. That’s because a slot on the Supreme Court isn’t a reward for past excellence in jurisprudence, it’s an effort to produce high-quality future jurisprudence. We care about past performance insofar as it’s indicative of future results. We’re not just handing out gold stars, in other words, we’re hoping to produce good Supreme Court decisions. But while of course you’d have to look at a judge’s past work as an important consideration, it’d be crazy to consider it the exclusive source of evidence about future judging. It’s hardly implausible to think that a gay justice may have a different perspective on cases related to gay rights, and I don’t see why it would be illegitimate for a president to take that into consideration.

More broadly, the nature of the Supreme Court is that a great many of its most important cases concern the rights of women and various kinds of minority groups. It’s absurd to think that a forum of nine white, male, heterosexual Christians could possibly compose the best possible forum for deciding these kinds of issues. The reality is that a nine-person group can’t possibly fully represent the diversity — in terms of religion, sexual orientation, ethnicity, gender, etc. — that exists in the country at large. But one can do better or worse on this regard and it makes perfect sense to aspire to do better. That’s not an alternative to caring about the quality of the jurisprudence, it’s part of trying to get good jurisprudence.