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Even the pearls you clutch are glistening white

May 5, 2009, 1:32 pm

Clutching Pearls

I tend to be on the cranky-about-affirmative-action end of the liberal spectrum, so if even the reactionary N. Merrill is peeved about some race issue, it must be awful. Yet I am peeved.

And the proximate cause of the peevishness is the way in which pundits have talked about Obama’s search for Souter’s replacement. See here and here and here for examples.

Three obvious thoughts, stated here only because I’m surprised and annoyed by the inanity of the pundit conversations so far:

First, there’s an awfully large candidate pool for the Supreme Court, and there are very hazy requirements for being the “best qualified.” Legal academics, judges, politicians with legal backgrounds…all have some claim to sufficient qualifications. This is, in part, because there’s no one metric of legal excellence here, and so it’s overwhemingly likely that there will be no one unique “best qualified” candidate. Analogy: there’s no one best athlete, best car, best teacher. There are competing criteria for evaluating these things, and so (most) arguments about these questions are a fool’s game. Jones gives great intro lectures, but Smith is better on her feet in seminars…and so on. So talk about a uniquely best-qualified candidate is really odd, because it ignores the way merit underdetermines the choice in a case like this.

Second, the Supreme Court makes decisions about things like this and this, just to pick examples off the top of my head. It is not crazy to think that it would be, ceteris paribus, much better to have two women, rather than one woman, on the Court. (I suspect that widespread failure to see this is yet more evidence that it is true.) And here I mean “better” in the sense of performing the functions of the court more excellently, not in the sense of “nicer and happier.” In a calmer, more developed argument, I’d appeal to two sorts of reasons here: (a) the way in which (for example) being a woman tends to make someone a more sensitive observer of issues affecting women; and (b) the importance of preserving the Court’s political legitimacy.

Third, the really bothersome thing about the “of course it will be a non-white woman [eye-roll]” response is how it simply presumes that anyone other than a white man is chosen simply for reasons of identity. Oh, that Sotomayor, getting a set-aside Supreme Court seat. No. If she were appointed, the story would be: accomplished legal thinker who also brings another benefit to the bench by being a woman. If we had some mysterious shortage of women teaching at good law schools, sitting on Federal courts, being Governors, working as partners in law firms….it might be harder to insist that a woman be nominated. But we don’t.

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