by hilzoy
"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."
"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."
This is absolutely right, and I think it's why Obama was right to
say that he wanted to nominate a justice who is not just "dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role", but who has the "quality of empathy, of understanding and identifying with people's hopes and struggles". This is not opposed to caring about getting the law right; it's about understanding what is at stake in various cases well enough to see how the law, as it is written, actually applies.
To see why this matters, consider an anecdote about Justice Powell's deliberations in
Bowers v. Hardwick.
Bowers was a case in which Matthew Hardwick, who had been arrested for engaging in consensual homosexual sex in his own home, challenged the Georgia sodomy statute under which he had been charged. One of the crucial questions on which the case turned was: are sexual activities between consenting adults, carried out in their own homes, protected under either the ninth or the fourteenth amendments?
Given previous cases involving the right to privacy, it was crucial to decide whether such acts involved what Justice Blackmun, in his
dissent, called
"the fundamental interest all individuals have in controlling the nature of their intimate associations with others", or just a right to engage in homosexual sodomy, as the majority claimed. Is the right to decide which consenting adult to have sex with, and how, one of those fundamental interests that we take the ninth and fourteenth amendments to protect, or is it not?
In their arguments (1, 2, 3), the majority discussed only gay sex, even though the Georgia statute also criminalized heterosexual sodomy. They also described their findings in terms of their application to homosexuals, saying things like: "The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy."
One might therefore ask: did the various Justices have any clear conception of the importance, to gay men and lesbians, of being able to have sex with the people they love? One might think that anyone would understand that, but that is only true if one accepts the idea that gay men and lesbians are people, rather than members of some strange alien species. So: how did the Justices think about gay men and lesbians?
Here's some evidence from Jeffrey Toobin's
The Nine, pp. 218-219 (note that Justice Powell was the swing vote in this case, and came down in favor of upholding Georgia's sodomy statute):
"One Saturday in the spring of 1986, Justice Lewis Powell struck up a conversation with one of his law clerks, Cabell Chinnis Jr., about Bowers v. Hardwick. As Chinnis recounted the exchange to Joyce Murdoch and Deb Price, authors of a history of gay rights at the Supreme Court, Powell asked about the prevalence of homosexuality, which one friend-of-the-court brief estimated at 10%. Chinnis said that sounded right to him. "I don't believe I've ever met a homosexual", Powell replied. Chinnis said that seemed unlikely. Later the same day, Powell came back to Chinnis and asked, "Why don't homosexuals have sex with women?" "Justice Powell," he replied, "a gay man cannot have an erection to perform intercourse with a woman." The conversation was especially bizarre not just because of its explicit nature but because Chinnis himself was gay (as were several of Powell's previous law clerks.)"
You have to feel for the poor clerk: there he is, a closeted gay man, being quizzed by his boss about why homosexuals don't have sex with women. (Apparently, Justice Powell wasn't thinking of lesbians at all.) I think that a good working definition of empathy would be: that quality that allows a straight man or woman to know the answer to that question without having to ask his or her law clerks. And I would think that the fact that Justice Powell had to ask that question might explain why he believed, falsely, that he had never met a homosexual: if you were gay, would you tell him?
Justice Powell was, as I said, the swing vote in a case that upheld criminalizing consensual gay sex carried out in the privacy of one's own home. It seems pretty clear that he had no conception of what it was like to be gay, and was therefore in no position to decide on the importance of the rights that he was deciding on. That is not a good way to interpret the law when, as in this case, the importance of a right is central to the question whether or not it is protected.
Consider how different things might have been had there been an openly gay man or woman on the Supreme Court, one who might have explained his or her take on this to Justice Powell.
I do not believe that we ought to try to represent every group in existence on the Supreme Court. Most importantly, representation obviously matters less than things like wisdom, devotion to the law and to its faithful interpretation, depth of understanding, and so forth. For another, there are only nine justices, and many more groups whom it would, other things equal, be good to represent. (This is one reason why empathy matters: it's obviously impossible to represent everyone, so there's no substitute for Justices being able to understand the impact of their decisions on people unlike themselves.) And the groups
people normally think of are not all the relevant ones: in terms of understanding the importance of laws to those they affect, I think that Sonia Sotomayer's having grown up in the projects is as important as the fact that Kathleen Sullivan and Pam Karlan are openly gay.
(Side note: some conservatives seem to think that empathy necessarily favors criminals. I don't think this is true at all. Growing up in the projects might give someone a particularly clear understanding of just how much damage crime does to inner city communities. I think that it's the understanding that matters, not which side it turns out to favor in a given case.)
But Kirchick is not objecting to the idea that we should care only about getting representatives of various groups on the Court, which I agree is absurd. He says that sexual orientation should not be "a job qualification", which I take to mean that it should not be a consideration at all, even when one is choosing between several highly qualified candidates. For the reasons given above, I think this is wrong. And it's not wrong because representing groups matters more than good jurisprudence, but because, as Bowers v. Hardwick makes clear, ignorance can lead to bad law.
I suspect that it's much worse than that. He says that he doesn't think that sexual orientation should be a job qualification, but what he really means is that he doesn't want any gays on the Supreme Court. It's a very simple process to get from one to the other:
1) Sexual orientation shouldn't be a qualification for being on the Supreme Court.
2) Any gay or lesbian who is nominated is clearly being nominated because of his or her sexual orientation rather than any other qualifications.
3) Therefore we can safely reject the candidacy of any gay or lesbian.
The only way this argument can fail is if there's one candidate who is so overwhelmingly better than everyone else that it's obviously silly to pass them over. That's highly unlikely to happen for a Supreme Court nomination, so it's a nearly perfect argument.
Posted by: Roger Moore | May 09, 2009 at 03:00 AM
Roger's right, I think. It's like von's joke earlier about "quotas" - the default, for these people, is straight white men. Appointing openly LGBT person, or a woman of any race - Anita Hill, for example - or a straight man who isn't white - is a special action, and the person being so nominated has been nominated for his or her difference from the "norm", not because they're actually qualified.
Incidentally, the importance of decriminalizing gay sex is not only to prevent homes being invaded by the police, but to keep social space legal. If it's illegal to have sex, it follows it's perfectly appropriate for the police to habitually raid any scene where criminals may be conspiring to commit a crime - ie, places where gay men may meet other gay men, even if they don't have sex there, because they might plan to have sex somewhere else - which is criminal conspiracy, under these laws.
Posted by: Jesurgislac | May 09, 2009 at 03:17 AM
I don't know my american history enough to know what kind of remarks and arguments were made against or for thurgood marshall being nominated/appointed to the supreme court all those ages ago, but i have this suspicion or perhaps am merely raising the point that marshall being black was indeed part of his "job qualification" whether anyone put it like that or not (let's leave reactionary justice thomas aside) - and why shouldn't it have been? a positive qualification. matt yglesias is quite right to suggest that it's patently absurd to believe that an all male all white all hetero (nearly) all protestant court can possibly decide for the best in a nation in which there is so much incredibly diversity.
if i remember correctly too, years later, justice powell came to regret his vote in hardwick more than anything else. and for good reason. it set back gay rights for well over a decade and sent a negative message of bigotry/discrimination against gay men and women from the highest court....poor powell, to be so blind that he couldn't even see that his own clerk was a gayboi, along with plenty of others there, i'm sure.
we are really coming close to the point as a society where we will need that pro-gay vote in the supreme court for complete federal protection and sooner or later for gay marriage. and i don't see any reason why a qualified gay man or woman shouldn't be nominated and approved. in fact i'd rather see a woman... uh...like two birds with one stone so as to speak. and also to explain, as you say hilzoy, the gay take on things to the other justices.
Posted by: michaelj72 | May 09, 2009 at 03:19 AM
I just want to point out that after his retirement, Justice Powell said that his vote in Bowers v. Hardwick was the biggest mistake of his career, and the one that he most wished he could retract and do over. This was on Oct. 18, 1990, at NYU School of Law.
Reported at (among other places):
http://www.gaypeopleschronicle.com/stories02/02dec6.htm
Posted by: Jeff | May 09, 2009 at 05:30 AM
We must have a gay. We must have a lesbian. We must have a transgender. We must have an atheist. We must have a buddhist. We must have a muslim. We must have a jew. We must have a christian. We must have native americans; one from each tribe. We must have a blind person, a deaf person, a mute, a person of low IQ, half should be women, half should be men, We must have someone under twenty. We must have someone between 20 and 40 years old. We must have a paraplegic. We must have a single mother. We must have a single father. We must have one from each spot in the birth order. We must have a rape victim. We must have a rapist. We must have a unionist. We must have a nonunionist. We must have a drug addict. We must have a teetotaler.
Do you have any idea how ridiculous you guys are. And you accuse the right of racism. You are the ones most likely to categorize people and not think of them as individuals.
One would think, from your logic, that a law written by a left-handed [straight] person should be considered inappropriate to apply to a right-handed [gay] person. After all, how could a left-handed [straight] person possibly be understand and be sensitive to the myriad constraints a right-handed [gay] person faces in life.
Posted by: d'd'd'dave | May 09, 2009 at 05:37 AM
d'd'd'dave: You entirely missed the point of this article. One would think, from your response, that you lack reading comprehension. Please re-read the article and put on your thinking cap. Thanks.
Posted by: Marty | May 09, 2009 at 05:46 AM
Routines bring a sense of order and a bit of comfort to life. Seeing d'd'd'dave consistently missing the point of an argument, is one of mine.
Posted by: Awesom0 | May 09, 2009 at 05:53 AM
Marty: You entirely missed the point of the comments that precede mine. One would think, from your response, that you lack reading comprehension. Please re-read the comments that precede mine and put on your thinking cap. Thanks.
For example:
Hilzoy: Powell was clueless about gays so all straight men are clueless about gays. Must have a gay in there to understand. People not from the projects are clueless about life in the projects. Must have someone from the projects to understand.
Roger Moore: "He says that he doesn't think that sexual orientation should be a job qualification, but what he really means is that he doesn't want any gays on the Supreme Court."
Because Moore can read Kirchick's mind and by extension anyone else's mind who doesn't hold Moore's opinion.
Jesurgislac: "the default, for these people, is straight white men. Appointing openly LGBT person, or a woman of any race - Anita Hill, for example - or a straight man who isn't white - is a special action, and the person being so nominated has been nominated for his or her difference from the "norm", not because they're actually qualified."
Who are THESE people? And who is looking to fill a particular box (gay, hispanic, whatever)? If boxes are going to be filled, then who gets to pick which boxes are the most important? Any one person will undoubtedly fill multiple boxes - what is the ideal mix. Can we have a gay hispanic person or must it be a gay white person? Women from the projects have a different experience than men from the projects.
Posted by: d'd'd'dave | May 09, 2009 at 06:24 AM
// Seeing d'd'd'dave consistently missing the point of an argument, is one of mine.//
Point of the article: Too many old white men (except for the black one and woman). They can't possibly match the point of view of the population. The population is so diverse. The court must be diverse.
Ergo my comment:
//We must have a gay. We must have a lesbian. We must have a transgender. We must have an atheist. We must have a buddhist. We must have a muslim. We must have a jew. We must have a christian. We must have native americans; one from each tribe. We must have a blind person, a deaf person, a mute, a person of low IQ, half should be women, half should be men, We must have someone under twenty. We must have someone between 20 and 40 years old. We must have a paraplegic. We must have a single mother. We must have a single father. We must have one from each spot in the birth order. We must have a rape victim. We must have a rapist. We must have a unionist. We must have a nonunionist. We must have a drug addict. We must have a teetotaler.//
I ask you: what is education for if not to expand our understanding of the world, its people, its customs, etc. Are not all of the justices highly educated? Is education not enough? Must one have been downtrodden and misunderstood to be a wise judge? If so, why the gay downtrodden or the black downtrodden. Why not also the homeless downtrodden? The idiot downtrodden? The physically handicapped downtrodden? Let's have a few communists and jihadists - they are downtrodden.
My point is that the whole box thing is a dead end. If you're going to fill boxes then you should just assign people to be justices at random like jury duty.
Posted by: d'd'd'dave | May 09, 2009 at 06:41 AM
If dave disagrees he must have missed the point. The point is so obviously true that no one could disagree unless they are stupid.
Posted by: d'd'd'dave | May 09, 2009 at 06:43 AM
I'd like to extend Hilzoy's excellent point about the functional value of the Supreme Court. It seems to me that the court is the main bulwark of the constitution's Enlightenment spirit against American society's cultural realities. The clash between these Enlightenment principles and the (dominant) cultural paradigm has been most clear concerning gender, sex, race and religion. So there's a very strong case for appointing justices who deviate from the dominant cultural norm on those issues.
I guess I'm just repeating Hilzoy's point actually, in order to say let's a damn(ed) atheist up there!
Posted by: byrningman | May 09, 2009 at 06:48 AM
Dave did miss the point to some degree but not totally. Of course, he doestotally misrrepresent hilzoy's point, but that is not unusual. Regarding his reaction to Roger Moore's comment, he is correct Moore is doing some mind reading there. However,based upon Kirchick's history, probably not far from the truth.
Personlly, I don't think being gay should be a qualification, as, by my understanding of the term, if one were not gay one would not be able to get the position.
What is really needed to point out is that being gay should not be a disqualification (which in and of itself is controversial to ma) and that it could be considered a desirable trait if all other qualifications are met.
The unfortunate thing about Dave's comments is that they hide a legitimate point of view, but he really is not very good at expressing them.
Posted by: John Miller | May 09, 2009 at 08:10 AM
There are 9 justices, of whom 5 are Catholic and 2 are Jewish. I'd say Protestants (like nonreligious people) are underrepresented.
Posted by: KCinDC | May 09, 2009 at 08:29 AM
Me: "I do not believe that we ought to try to represent every group in existence on the Supreme Court."
d'd'd: "We must have a gay. We must have a lesbian. We must have a transgender. We must have an atheist. We must have a buddhist. (....)"
Marty: "d'd'd'dave: You entirely missed the point of this article."
I'm with Marty on this one.
Roger, Jes, et al: I believe Kirchick is gay. Not that that precludes homophobia, but it does make it less likely that he doesn't want any gays on the court, period.
Posted by: hilzoy | May 09, 2009 at 08:53 AM
The evident problem with declaring that x could be a desirable trait, is that its functionally equivalent to declaring that not x could be an undesirable trait.
Irrelevant criteria should be irrelevant.
Posted by: Brett Bellmore | May 09, 2009 at 09:00 AM
Excellent piece, Hilzoy.
The truth is that once Gay and Transgender people are seen as actual people, and laws are in place to protect their civil rights, it should no longer be necessary for them to have a champion on the court to explain very slowly to the other justices that yes, gays are human beings too. And Ditto for women and for minorities. If we could rely on each and every justice having a full and well rounded education, empathy for the plaintiffs and defendants both, the quality of curiosity and generosity combined with strong intllectual faculties and a top notch education in both jurisprudence and in anther field that would be perfect. At that point mere gender, sexual orientation, or race would be beside the point.
But we aren't at that point now, nor will we be for a few more rounds of "lets let everybody play in the public pool." The quotes from Powell, or the just as egregious discussions in the recent case about strip searching the 13 year old girl, shows that the white male justices remain firmly imprisoned in a very narrow, white male view of what it is to be human and to be a citizen. That's a flaw in their *legal judgement* and its one that has been well explored, theoretically, in discussions of the evolution of the "ordinary man" concept. If the ordinary man is always identical to the justice then the ordinary man is always just like Antonin Scalia, or example.
Well, I'm happy for laws that apply to domineering Catholic men with lots of kids and a submissive wife to be applied fairly. But the application of such laws to non Catholic, non males, without non working wives, and without six kids, without a little tweaking, may not be good justice or good sense. And yet Scalia never seems to doubt that he knows it all, has seen it all, grasps it all. If the white male justices could just excercise a little humility and curiosity we'd all have been better off.
I'd also like to know why some qualifications, like "having been a governor" or "having been a policeman" or "having come out of the state court system" would be considered a plus as in they add to the justice's experience but "having given own body birth to another human" or "having endured humiliating jim crow laws" or "having been excluded from school or threatened with death for being gay" aren't considered pluses? They are both kinds of experience with the real world.
aimai
Posted by: AIMAI | May 09, 2009 at 09:28 AM
Brett: I don't think so. Break it down a bit: first, it's not obvious that a thing and its opposite cannot both be desirable (possibly in different ways.)
Second, the opposite of "being X" is "not being X", as opposed to any of the specific ways of not being X, so even granting the assumption that a thing and its opposite cannot both be desirable, what would not be desirable would be the mere absence of X, not the presence of other properties. (E.g., if being blonde is desirable, then -- granting this assumption -- simply "not being blonde" is not desirable, but being redheaded or brunette might well be.)
Third, "not being desirable" here means: there is no positive reason to seek X out, not: there is some reason to avoid X.
So, as I see it, even granting the assumption in (1), which I don't, all you get is: the mere absence of being e.g. gay is not, itself, something we should desire in a supreme court justice. Nothing like: being straight is something we should avoid. Being gay is a plus, possibly quite minor, like knowing something about some deeply obscure part of the law, but a plus nonetheless. "Not being gay", per se, is not a plus; but being straight, or bi, might well be.
I don't see what's wrong with this.
Moreover, the whole point is that the Court should have diversity, broadly construed. It's only on a Court that is (so far as we know) entirely composed of straight people that being gay would count as a plus. On a Court entirely composed of gays, being straight would be a plus.
Posted by: hilzoy | May 09, 2009 at 09:36 AM
I have students who think like Brett. I tell them 'if you don't turn in the essay, you will fail' and they translate that to 'if I turn in the essay, that means I will pass'. They usually don't.
Posted by: liberal japonicus | May 09, 2009 at 09:49 AM
I think it's a bit of a zero sum: You can't make a plus out of x without making a minus out of not x.
Posted by: Brett Bellmore | May 09, 2009 at 09:54 AM
I think it's a bit of a zero sum: You can't make a plus out of x without making a minus out of not x.
Sure, it's just like basketball. It's a plus to have quick hands, quick feet, and a quick floor general's mind because a good point guard is so valuable to a team. Ergo, Tim Duncan's value is "a minus."
Posted by: JanieM | May 09, 2009 at 10:12 AM
By the time President Obama has the time to select his third Supreme Court nominee, we might live in a society where nominating an openly gay or lesbian person won't be so earth-shattering.
By then, hopefully, more states will allow gay marriage than not.
I think this is an idea ahead of its time. We still live in a country, after all, that does not allow anyone who is openly gay to serve in its military, which is truly, truly sad.
That's not saying President Obama could not embrace an idea ahead of its time.
But unless I'm missing something, Obama's view on gay marriage is essentially the same as in-over-her-head Miss California, who has become something of sympathetic figure thanks to Perez Hilton's heavy-handed personal attacks.
For now, I think President Obama is on the right track for targeting someone who has empathy for the way laws affect society as a whole.
P.S. I think Senator Russ Feingold of Wisconsin would make an excellent choice.
Posted by: bedtimeforbonzo | May 09, 2009 at 10:29 AM
I think it's a bit of a zero sum: You can't make a plus out of x without making a minus out of not x.
How can something be 'a bit' of a zero sum? Why hedge?
If it *is* a zero sum thing, then how can one make a decision at all? Of course, this is not a 'zero sum' game at all. You can't really de-contextualize this.
Posted by: jonnybutter | May 09, 2009 at 10:36 AM
"The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy."
The Constitution does not confer a fundamental right upon me to eat a ham sandwich for lunch.
Seriously, that sentence appeared in a SCOTUS opinion? The one about homosexuals, I mean, not the one about the ham sandwich.
I knew there was a good reason I never became a lawyer. My head would explode. I'd spend all my time kicking furniture and yelling at kids.
Do you have any idea how ridiculous you guys are.
Me personally, no, because I'm married and my wife helps me remember. She, and my bathroom mirror and scale.
All of the other folks here will have to rely on you to remind us, dave. You've never let us down yet.
Posted by: russell | May 09, 2009 at 10:39 AM
Brett Bellmore: "The evident problem with declaring that x could be a desirable trait, is that its functionally equivalent to declaring that not x could be an undesirable trait."
Well, if every single high court judge was homosexual, I might declare homosexuality an undesirable trait for the next high court judge - would that be wrong?
Every minority obviously can't have fair representation as the system works today - and the system itself implies that this won't be needed - but that doesn't mean diversity isn't a good thing, or that there could be such a thing as overrepresentation of certain groups and viewpoints.
Posted by: Harald Korneliussen | May 09, 2009 at 10:40 AM
(yes, English is my first language, but you'd never know it from that last post. sheesh)
Posted by: jonnybutter | May 09, 2009 at 10:41 AM
When the Supreme Court isn't 8/9 white, when it isn't 8/9 male, when it isn't 9/9 straight, when it isn't 0/9 Latino, then it might make some sense to worry about the "fine tuning" questions d'd'd'dave asks.
When you sail a ship from New York to Palermo, you just point the damn ship at the Mediterranean for the first 3/5 of the trip, and you worry about your berth in the harbor when you get there.
Posted by: joe from Lowell | May 09, 2009 at 10:51 AM
I'm less surprised at the right's reaction to the idea that diversity on the court is a good thing (that's an old number in their hymnal) than I am at their willingness to scoff at the very notion that empathy is an important aspect of being an effective justice or judge (see, for example, here, here, here, and here....and that's just on one right-wing website).
Now some of this is simply the habit of automatically gainsaying anything whatsoever that President Obama suggests. I suspect if he had expressed the importance of a concern for precedent or a commitment to basic civil liberties, Townhall.com would have come up with a reason to clutch the pearls.
But I also think it says something about where the American right is today that empathy, in particular, is seen as ridiculous or even threatening in a justice.
It was, after all, only nine years ago that "compassionate conservatism" was the slogan du jour on the right. And empathy has a longer potential conservative history. Adam Smith, who I take it is still a hero on the American right, based his Theory of Moral Sentiments on empathy avant le lettre (the term itself entered the English language early last century as a translation of the German Einfühlung...is that the problem?).
As I have frequently felt over the last few months, maybe this would be a good time for the right to engage in a little self examination. Should conservatism really be about denouncing the rule of law and promoting absolute executive authority (when discussing torture), promoting secession (when discussing taxation), and ridiculing empathy (when discussing justice)?
Posted by: Ben Alpers | May 09, 2009 at 10:57 AM
Seriously, that sentence appeared in a SCOTUS opinion?
Well, yeah, but it was widely criticized and eventually overruled. Which is basically how things are supposed to work, though it'd be nice if they'd gotten it right the first time.
Posted by: Tom | May 09, 2009 at 11:03 AM
This also ignores the fact that traits aren't infinitely additive. Gas mileage in an automobile is a desirable trait. So is power. But there is no way you're going to get a lot of both in the same vehicle, no matter how much money, effort, or savvy you throw at the problem. Or the engineer's lament: 'Good, fast, cheap: pick any two.'
But I think I see what Brett finds so disturbing about affirmative action: the fact that less qualified individuals are elevated above and past the more qualified. That's wrong, of course, at least in most circumstances. 'Affirmative Action', as I understand the concept, is that if two candidates are equally qualified, the one who possesses secondary traits that have historically been discriminated against are selected first. This isn't some sort of payback; this is two redress an imbalance, say on a court where eight of the nine are dudes and seven of the nine are of the pasty white variety. All other things being equal, one would expect the composition of the court to be five women and four men, to name but one dimension that seems to be out of whack.
It's possible, I'll concede, that it just so happens that the most qualified people to sit on the highest court of the land are a bunch of old white guys. But I wouldn't take that as a betting proposition: it's been my experience that brains have nothing to do with gender, race, sexual orientation or religious inclinations. And I can't think of a plausible reason why they would. Can Brett?
Posted by: ScentOfViolets | May 09, 2009 at 11:10 AM
It's been my experience that for self-declared conservatives, empathy is in short supply, and what they have of it tends to be lavished on those of their own class, stripe, and creed. There's plenty of empathy for the son of the Dean of the law school at some prestigious university if he's caught with a gram or so of cocaine. Then the kid is someone who just 'made a mistake', a mistake, furthermore, that should not determine the course of the rest of his life. It's quite different if the kid is black, from the projects, and caught with a quarter-gram of crack; then it's all about 'these types need to be taught a lesson.'
You see this happen a lot with medical issues too - conservatives will be against, say, stem cell research . . . unless they happen to have a wife or daughter or mother who's suffering from some disease that might be ameliorated or cured by the fruits of that research.
Posted by: ScentOfViolets | May 09, 2009 at 11:21 AM
The problem doesn't even start at the Supreme Court, but at the question of why it just so happens that most of the available candidates are just like the ones already on the Court?
Imagine you have a bin of rubber balls of every color and size. You decide you will purchase the "best" ball, determined by putting it through a Consumer Union-style sorting machine. But this machine is flawed; it doesn't just select the balls that are bounciest. It applies stress tests that are twice as severe to purple balls, it weeds out twice as many magenta balls, and orange balls have a distressing tendency to get stuck in the hopper. So it may well be that you got a very good chartreuse rubber ball spat out at the end, but the machine was very likely to give you a very good chartreuse ball, rather than the very best ball overall.
When we have a legal system that heavily promotes and favors white guys, all the way from law school admissions up to appellate court appointments, it's no wonder that guys like d'd'd'dave look at us blankly and say, but we just want the very best candidate. They don't realize, or more likely don't want to realize, how people get tagged to be "best" in that system.
Posted by: mythago | May 09, 2009 at 11:24 AM
"...but i have this suspicion or perhaps am merely raising the point that marshall being black was indeed part of his 'job qualification' whether anyone put it like that or not...."
Thurgood Marshall's biography was one of his strongest qualifications. It's not that he was African-American; it's what he did for civil rights, what he did in his work for the NAACP, and the entirety of the life he lived, as well as his history of litigation, that qualified him. It's not that he was chosen for the color of his skin, but the color of his skin was an integral part of his biography.
Posted by: Gary Farber | May 09, 2009 at 11:27 AM
"Because Moore can read Kirchick's mind and by extension anyone else's mind who doesn't hold Moore's opinion."
This after:
d'd'd'dave believes it's wrong to read people's minds and "quote" what they allegedly mean, rather than what they write.Unless he's the one doing it.
Posted by: Gary Farber | May 09, 2009 at 11:33 AM
Hhhmmm...if the Republicans can deliberately and openly decide to favor a young candidate from the pool of potential Supreme nominees, I don't see why Obama can't favor a (fill in the demographic) one.
As usual-it's OK if the Republicans do it.
The truth is that the decision to pick this one out of the pool of qualified candidates rather than that one is always going to reflect the predilections of whoever is doing the picking.
The Republicans picked the young, ideological candidates for partisan reasons. Obama wants someone who understands real life in America and has empathy.
Interesting contrast.
Posted by: wonkie | May 09, 2009 at 11:34 AM
Anita Hill for SCOTUS!
I knew her a very little bit when we were both at the University of Oklahoma. We lived near-by, and occasionally met at the bagel shop by the interstate. She was unfailingly polite, even to those whose attitude toward her was lees than polite.
I'd LOVE to have her in a position to constantly and continually embarrass Unca Thomas...
Posted by: woody | May 09, 2009 at 11:40 AM
"Do you have any idea how ridiculous you guys are."
Clarence Thomas was chosen because he was the most qualified person in the land.
Right?
Posted by: Gary Farber | May 09, 2009 at 11:42 AM
This is an absolutely wrong statement.
It ignores WHY "x is a desirable trait". Why is x a desirable trait? It depends on what you're looking for. Well, given the candidates, having a financial background would be helpful. So would having international experience. If none of the candidates have a financial background, then "not-having a financial background" is NOT an undesirable trait. If candidate A has a financial background, and none of the others have it, then "not having a financial background" MIGHT be an undesirable quality. But if candidate A has a financial background, but candidate B has international background, then "not having a financial background" is NOT an undesirable trait.
This syllogism is binary thinking and is less than useful in this particular situation.
Posted by: gwangung | May 09, 2009 at 11:49 AM
"You see this happen a lot with medical issues too - conservatives will be against, say, stem cell research . . . unless they happen to have a wife or daughter or mother who's suffering from some disease that might be ameliorated or cured by the fruits of that research."
I'm a conserative and I'm not against stem cell research: I'm against embryonic stem cell research, which offers few, if any, treatments in curing or preventing diseases; I heartily favor adult stem cell research, though, which has brought about working treatments for multiple afflictions. To equate the two and then use that equation as a bludgeon is deliberate on the left these days, which, to me at least, is disgusting. The same goes with the argument that the right is "against immigration" because they favor protecting the borders from illegal traversion, especially from terrorists. I'm all for legal immigration, not illegal immigration.
Posted by: lilneelix | May 09, 2009 at 11:57 AM
I'm getting a little irked with arguments about "picking the best qualified candidate, never mind if they're black, female or green."
Speaking as someone who did a couple years of graduate work in methodology and measurement theory, it betrays a shallowness of thought about their arguments.
First, it doesn't show a lot of thought about which criteria are used to determine "who is the best candidate." Too many times, some arguably relevant criterion are excluded. Quick--who would you hire? The student with the 3.8 GPA or the one with a 3.2 GPA? Now, would it make a difference if the 3.8 student was supported by his parents and the 3.2 student worked her way through school with two part time jobs while supporting her younger brother?
Second, the argument ignores that not all criteria can be measured on an interval scale (like degrees or meters). Some can only be measured on categorical scales--and these categorical scales can be valid measuring sticks. Knowing oppression or knowing first hand how the law would affect broad swaths of people can be a valid criterion.
Third, the arguments absolutely ignores that almost ALL non-categorical measuring sticks are pretty much accurate, but they are not precise. That is, we get a good idea if a person is smart or learned, but we do much less well figuring out if a person is SMARTER or MORE learned than another, particularly if the people are fairly close together on that scale. And it's going to be a good bet that at this level, almost all the candidates will be very close together.
Posted by: gwangung | May 09, 2009 at 12:03 PM
As an aside, to say embryonic stem cell research offers few if any treatments is moronic. The reason why they're doing embryonic stem cell research is they need to do that in order to figure out if there ARE any cures. Use a better argument.
Posted by: gwangung | May 09, 2009 at 12:12 PM
I'm against embryonic stem cell research, which offers few, if any, treatments in curing or preventing diseases
and you know this... how ?
Posted by: cleek | May 09, 2009 at 12:12 PM
IMHO you will not get an adequately gay sensitive court until every one of the court seats is filled by someone born after about 1970 or maybe even 1980.
And why is gay the flavor of the month? Why isn't it children from single parent households?
Posted by: d'd'd'dave | May 09, 2009 at 12:16 PM
"'Affirmative Action', as I understand the concept, is that if two candidates are equally qualified, the one who possesses secondary traits that have historically been discriminated against are selected first."
That's the theory, anyway, or perhaps I should say, the rationale. The practice is rather different, of course, as everyone tacitly is aware: There's no large pool of "equally" qualified applicants to pick among, there are graduated pools, and inevitably you end up having to pick less qualified applicants over better qualified ones in order to implement the policy.
Posted by: Brett Bellmore | May 09, 2009 at 12:25 PM
"I'm all for legal immigration, not illegal immigration."
So you're for making most currently illegal immigration legal, then, thus curing most of the problem, then, right?
Posted by: Gary Farber | May 09, 2009 at 12:41 PM
"And why is gay the flavor of the month? Why isn't it children from single parent households?"
Are children from single parent households, because of their status as such, frequently fired from jobs, beaten up, insulted, given trouble finding places to live, preventing from marrying, killed, prevented from serving in the military and otherwise discriminated against and persecuted against?
Because those differences would answer your question.
Posted by: Gary Farber | May 09, 2009 at 12:43 PM
"...and inevitably you end up having to pick less qualified applicants over better qualified ones in order to implement the policy."
No, that's your imaginary presumption. If you can support this with a cite to facts, go ahead.
Posted by: Gary Farber | May 09, 2009 at 12:44 PM
Uh, no, that would not be implementing the policy. Qualifications first - then secondary characteristics.
If you have any evidence of any systemic actions to the contrary, why don't you post it?
Posted by: ScentOfViolets | May 09, 2009 at 12:48 PM
"And why is gay the flavor of the month? Why isn't it children from single parent households?"
Because we already have a POTUS who is a child of a single parent household. Check that group off the list. Teh ghey is next up. Take a number and get in line, that's how it works.
Didn't you read the manual?
Posted by: ThatLeftTurnInABQ | May 09, 2009 at 12:52 PM
We have a court dominated by white straight male Christian well-educated upper class lawyers and we are to believe that adding a white gay male Christian well-educated upper class lawyer would greatly increase the diversity of the court and its ability to empathize with people from different walks of life.
Rubbish.
If you want diversity on the court, nominate a felon. Nominate a factory worker. Nominate someone who has never graduated from high school, let alone gone to law school.
And don't give me the nonsense that someone with little education can't interpret the law. If they can't interpret the law, you must not expect or require that they obey it. Empty the prisons.
Posted by: now_what | May 09, 2009 at 12:56 PM
The same goes with the argument that the right is "against immigration" because they favor protecting the borders from illegal traversion, especially from terrorists. I'm all for legal immigration, not illegal immigration.
So we say that anyone not a terrorist is free to enter the country legally and you have no problem with that? It's all legal, right?
Posted by: Scott de B. | May 09, 2009 at 12:59 PM
Brett's comment makes sense when you assume that all heterosexual white male achievements are gained through merit alone, and when you pretend that certain non-merit-based advantages are acceptable.
So, for example, legacy admissions are perfectly OK, and if a white male candidate is hired because his father and the managing partner were in Skull and Bones together, it doesn't matter if a more-qualified black woman was passed over for the position. Only those "unqualified" people who threaten the status quo are a problem.
I went to law school with people like Brett. White guys who would whine on and on about "affirmative action" in one breath, and in the next brag about how they had a good clerkship because their uncle was in the same men's service organization as a Federal judge, or how they know a hiring partner through dad's country club and so they had a good solid offer for a summer job. When white guys do it, it's not "affirmative action", it's "networking" and "connections". And then merit is at the bottom of their list.
Posted by: mythago | May 09, 2009 at 01:35 PM
I understand the virtues of diversity in court picks, but I'm unclear on how the court failed so completely. I mean, having a gay justice on the court probably would have helped, but it would have only been a backup mechanism: the judges are supposed to be able to understand different types of people even without prompting from a group representative on the bench sitting next to them. Can anyone explain why the court failed so completely that Powell was so astonishingly ignorant when he ruled in the case? If the court was functioning at all, shouldn't the justices have acquired at least that basic bit of factual information before ruling?
Posted by: Turbulence | May 09, 2009 at 01:39 PM
You have to feel for the poor clerk
i picture him as Waylon Smithers.
Posted by: cleek | May 09, 2009 at 01:42 PM
"If you have any evidence of any systemic actions to the contrary, why don't you post it?"
Ok, I'd rather assumed that anybody sounding off on affirmative action was at least minimally acquainted with the subject, but quite a bit of evidence is actually available on the subject, thanks to cases like the U of M lawsuit.
There's plenty of http://www.ceousa.org/index.php?option=com_content&task=blogcategory&id=78&Itemid=100>objective evidence that affirmative action admittees are not even remotely equally qualified.
Posted by: Brett Bellmore | May 09, 2009 at 01:58 PM
"No taxation without representation" was based on privileging a specific trait--do you live in America or Britain?--over more general ideas of qualifications. Americans thought it was important enough to see someone like themselves in Parliament to wage a war over it.
If taking the best candidates from a less diverse pool were sufficient, being governed by a parliament made up purely of members elected from British constituencies would have satisified the Founders. It didn't.
The insistence on ignoring specific traits of candidates strikes me as ahistorical and somewhat disingenous.
Posted by: DN | May 09, 2009 at 02:34 PM
Brett, if you don't want people to laugh in your face, I suggest you not cite the Center for 'Equal' Opportunity. What's next, Horowitz on the 'liberal bias' of universities?
Posted by: ScentOfViolets | May 09, 2009 at 02:42 PM
now_what, your attitude is refreshing, alas, the whole idea of judges go against it.
But if I was ever in a court, I know I'd prefer a large jury, a random sample of the population (not filtered for political opinions or prior actions of any sort) to what I would get in the real world.
I trust in random sampling way more than I trust in the wisdom of judges.
Posted by: Harald Korneliussen | May 09, 2009 at 02:48 PM
I knew there was a good reason I never became a lawyer. My head would explode. I'd spend all my time kicking furniture and yelling at kids.
Or kicking kids and yelling at furniture, as it might be. ^_^
You see this happen a lot with medical issues too - conservatives will be against, say, stem cell research . . . unless they happen to have a wife or daughter or mother who's suffering from some disease that might be ameliorated or cured by the fruits of that research.
I think a primary poster at LG&M once called it "beauty contestant advocacy", where you have legislators who advocate something that either they have had a direct experience with, or have had someone come to them and present a narrative that they are touched by. I wish I could find the post, but I can't seem to hunt it down.
Posted by: mattH | May 09, 2009 at 02:54 PM
"The Republicans picked the young, ideological candidates for partisan reasons. Obama wants someone who understands real life in America and has empathy."
Wonkie's commentary is sad because of how true it is.
The country is trying mightily to unRepublicanize itself but the Bush-Cheney Admin left its mark so thoroughly and messily as to make that a task that will surely require two Obama terms.
I suspect it's far easier to find someone who thinks like you than searching for an open mind who has an impressive range of human experience. Could take a while.
Does anyone have any insights as to who President Obama may pick?
Posted by: bedtimeforbonzo | May 09, 2009 at 03:00 PM
"There's plenty of objective evidence that affirmative action admittees are not even remotely equally qualified."
Looking at these studies, they allege that:
Where you see that this proves that "affirmative action admittees are not even remotely equally qualified," I'm unclear: can you be more specific, please?Posted by: Gary Farber | May 09, 2009 at 03:19 PM
Turbulence:
the judges are supposed to be able to understand different types of people even without prompting from a group representative on the bench sitting next to them.
Really? That's part of the qualifications for SCOTUS, or any judge?
I mean, perhaps it should be -- that's what Obama's reference to "empathy" is about, IMHO. But I had never understood that judges were supposed to understand *human beings*, just the law.
As the Powell anecodote illustrates, one of the things that happen with judges is that few people won't tell them when they're wrong. That's why SCOTUS is a committee -- because the other eight egomaniacs can tell him when he's off-base.
And this is why Kirchik's The only aspect that Obama should consider as he weighs his options over the next few days is the candidates' jurisprudence is pure bupkis.
When you're putting together a choir, you don't just pick the best singers at the audition -- you pick a balanced mix of sopranos, alto, tenors, and basses, to get the overall sound you're looking for. We've got a Supreme Court made up of 8 tenors and an alto; *of course* Obama should be looking at people who don't look just like the guys we've got.
Indeed, insofar as I have a preference, I'm ambivalent about Sotomayor because she's Catholic, and I think SCOTUS is tipping toward "too Catholic compared to the country as a whole". I'd be uncomfortable if there were more than 2/3 Jews, for the same reason -- it might undercut the Court's credibility with the public, and after Bush v. Gore that credibility needs a *lot* of shoring up.
From my POV as a woman, the court's recent behavior has tipped over the line into "not creditable". I *do not trust* them to treat half the population as real human beings, and I won't until there are at least 3 women on the Court. Those of you who are suggesting this or that otherwise worthy male are, as far as I'm concerned, trying to put another damn tenor in ther, without paying any attention to how the chorus *sounds*.
Posted by: Doctor Science | May 09, 2009 at 03:27 PM
I think, Gary, that we're supposed to conclude from this that "affirmative action admittees are not even remotely equally qualified". And that if you have to ask for the logical connections, it just proves that you don't get it :-(
Posted by: ScentOfViolets | May 09, 2009 at 03:27 PM
The Supreme Court is a deliberative and a discursive body. Talking about 'qualifications' as if these things are strictly a matter of legal comprehension misses a lot of other qualitative ground. Same goes for discussions of college admissions that think only in terms of single students and results and not about the affect that individual students in aggregate have upon classroom discourse and collective understanding. Some discussions just don't happen without the right mix of people, especially when one is looking at received knowledge. Lack of diversity in approach and experience is more prone to reinforce the status-quo through selection effect and confirmation bias. It has nothing to do with ability and everything to do with the breadth of data that can be drawn upon to test the validity of group thinking.
Posted by: nous | May 09, 2009 at 03:52 PM
Affect = effect above. Sheesh.
Posted by: nous | May 09, 2009 at 03:55 PM
Turbulence: "Can anyone explain why the court failed so completely that Powell was so astonishingly ignorant when he ruled in the case?"
Can't you instead explain why it wouldn't? What mechanisms, exactly, are in place to ensure that high court judges (who are appointed for life) will have any more wisdom, clearsight or empathy than the rest of us?
Not any I trust.
Posted by: Harald Korneliussen | May 09, 2009 at 03:55 PM
Gary,
The results of that illegal immigration that you (and I) would like turned into results that are not illegal can be made so in at least two ways that I can imagine. (I use my imagination a lot). One way is to change the law so that such entry is not illegal and another is for those who should be allowed entry legally if our law were not so restrictive to be stopped or to refrain from entry until they have a legal entry status.
Does having empathy suggest that a justice would see this as you appear to and thus decide that because denied entry is empathetically wrong that it could not possibly be legal?
BTW, I was surprised that you didn't jump right on that protestant justice miscount back there.
Posted by: GoodOleBoy | May 09, 2009 at 04:07 PM
Can't you instead explain why it wouldn't? What mechanisms, exactly, are in place to ensure that high court judges (who are appointed for life) will have any more wisdom, clearsight or empathy than the rest of us?
Harald, I can easily understand high court judges lacking in wisdom and empathy. What confuses me is judges lacking really basic facts about the cases at issue. I mean, if the behavior of gay men is an important aspect of the case, then judges should know the most basic facts about gay men before they rule on the case. Just like judges should know what an airplane is before ruling on the legitimacy of the FAA. I'd expect judges to acquire this basic knowledge from listening to oral arguments or from reading briefs, but apparently they didn't in this case. And that makes me wonder: if the process of giving judges the most basic information they need to make a decision failed so spectacularly in this case, how well is the process working now?
Really? That's part of the qualifications for SCOTUS, or any judge?
In a way, yes. Judges are supposed to get important information from people arguing their case or filing friend of the court briefs. If those processes for information transmission completely fail, then taking advantage of the fact that one of their fellow judges is gay can help, but the regular processes should not be completely failing very often, right? I mean, there's a limit to the amount of diversity we can have on the Supreme Court, so the court should not require the presence of gay or poor or atheist judges to decide correctly most of the time.
I mean, perhaps it should be -- that's what Obama's reference to "empathy" is about, IMHO. But I had never understood that judges were supposed to understand *human beings*, just the law.
Judges are not computers and the law is not a computer program. The law is often contradictory or nonsensical and in order to "understand" it, judges need to apply the underlying principles to the case at hand. I don't think anyone could do that without understanding human beings to some extent. If nothing else, judges need to have some understanding of the people who drafted statutes in order to figure out their intent at times.
As the Powell anecodote illustrates, one of the things that happen with judges is that few people won't tell them when they're wrong.
But the issue here wasn't that Powell believed something that was wrong; it was that he was completely ignorant. Perhaps I've got this mixed up, but it seems like Powell would have decided correctly if he had proper information, but all he had was a gaping lack of information.
Posted by: Turbulence | May 09, 2009 at 04:17 PM
Ok, I'd rather assumed that anybody sounding off on affirmative action was at least minimally acquainted with the subject, but quite a bit of evidence is actually available on the subject, thanks to cases like the U of M lawsuit.
You realize that you're on a computer on the Internet and can provide links to these things, right? I mean, are you afraid you might be wrong about something again, and if you link to it, people will find out? If I were you, I'd try to refrain from being so smugly dismissive of others' ability to acquaint themselves with facts and background, given your track record.
Posted by: Phil | May 09, 2009 at 04:44 PM
"the U of M lawsuit"? Brett is apparently unaware that the University of Michigan gives a bonus to legacy admittees and those who have a sibling attending U of M.
He also rather shows his hand by conflating minorities with 'affirmative action admittees'. I wonder where people like Brett where when Thomas was appointed.
Posted by: mythago | May 09, 2009 at 04:47 PM
Yes, once again the usual suspects are entirely missing the point here.
What gets me is that conservatives, who are supposedly the pro-business types, have such a hard time grasping the concept that a team with a diverse set of approaches and experiences in matters that relate to the work they do is much stronger and more able to competently deal with complex and unexpected issues.
I work in IT at a major e-com site, and one of the hats I used to wear was a Network Operations Center analyst. We support a travel-related business with a variety of code bases and platforms used internally. One day we had a major "outage" where a bunch of alarms started going off because our EU bookings were out of trend week-over-week. A troubleshooting conference bridge ensued, and lasted for hours without success.
Finally a coworker who happened to be from another country joined the call and said, "you guys know the World Cup is going on right now, right?"
We didn't, nor did we see the point at first. If anyone on the call followed football, it was the American kind; "soccer" was not really on our radar, and even if we'd seen something on the web or in the news about the WC, it really wouldn't have occurred to us to think it relevant.
But as it turns out, our bookings were hit the hardest on our FR point of sale--and sure enough, the French team was in the middle of a game in the WC, and the downward slide in bookings on that POS started a few hours before the game. We saw the pattern repeat itself again and again on various markets, and felt incredibly silly for not making the connection.
The drop in bookings was real, which meant that as long as they were down we naturally assumed that the fact that we couldn't find what was wrong didn't mean there wasn't something wrong. It took a different perspective, a different culture, to get us out of that hole.
I wouldn't make a hiring or firing decision based on someone's ethnicity, but I know that I'd sure hope to end up with a diverse team, because sometimes you really do need a different perspective. This is all the more important on the SCOTUS, where the perspectives and decisions of the court have a real-world impact on the lives of every person in this country.
Posted by: Catsy | May 09, 2009 at 05:03 PM
Slightly OT, but this is a great article on the 5-year anniversary of gay marriage in Mass: http://news.yahoo.com/s/ap/20090509/ap_on_re_us/us_gay_marriage_five_years.
I was particularly amused by this unintentionally ironic quote from the local bishop complaining about the lack of civil debate about opposing gay marriage:
Yes, bigot, that's the point. When your bigotry is such that you cannot live and let live when it comes to the object of your bigotry, and the consensus in the community of which you're a part is that your point of view is bigoted, you are going to be shunned and called a bigot by decent people.
Shaming you into living and letting others live is a feature, not a bug.
Posted by: Catsy | May 09, 2009 at 05:44 PM
"From my POV as a woman, the court's recent behavior has tipped over the line into 'not creditable'."
Might this be one such factor?
Posted by: Gary Farber | May 09, 2009 at 05:46 PM
"Does having empathy suggest that a justice would see this as you appear to and thus decide that because denied entry is empathetically wrong that it could not possibly be legal?"
No, because I can't see any reasonable way a right to legally immigrate to the U.S. could be construed from either the Constitution or stare decisis.
I'm a liberal, not a lunatic. My beliefs about what might and might not be constitutional are not, perhaps contrary to what you might imagine, arbitrary, nor based simply on my preferred policy conclusions.
"BTW, I was surprised that you didn't jump right on that protestant justice miscount back there."
All you Christians look alike to me.
;-)
Posted by: Gary Farber | May 09, 2009 at 05:52 PM
"...retreat into a live-and-let-live situation."
aiiieee! they're going to make us stop persecuting them! retreeeat!
Posted by: cleek | May 09, 2009 at 05:57 PM
Let Joe the Plumber be your model:
Live and let live. Just stay the hell away from my kids, friend.
Posted by: russell | May 09, 2009 at 06:07 PM
It is a travesty upon the internets that a blogthread predicated upon sodomy laws had gone on this long without citing Molly Ivins's wonderful essay "The Seventy-Third Session", published in 1993 and included in her second collection "Nothing But Good Times Ahead". The relevant passage follows, per my retyping into the comment box. I've also taken the liberty of bolding the last sentence quoted, for obvious reasons.
(WARNING: Some salty language, though not quite beyond the bounds for newsmagazine publication)
The whole column is worth reading, of course, and you should be able to at this Read Inside Amazon link - search for "Warren Chisum", as I can't figure out how to hyperlink a specific page). It's a great book, and I'd strongly recommend that anyone who hasn't read it get a copy from your library or from your local or internet-accessible used bookstore.
Posted by: Warren Terra | May 09, 2009 at 08:34 PM
Posted by: Dan S. | May 09, 2009 at 09:29 PM
Gary:
Oh yes, that was *exactly* what I was thinking of. They couldn't have done a better job of illustrating male bias, cluelessness, and self-centeredness if such had been their actual intention.
Posted by: Doctor Science | May 10, 2009 at 12:50 AM
Turb:
Judges are supposed to get important information from people arguing their case or filing friend of the court briefs. If those processes for information transmission completely fail, then taking advantage of the fact that one of their fellow judges is gay can help, but the regular processes should not be completely failing very often, right?
My irony-o-meter is having some difficulty, here.
In my experience, people learn to understand other people through (a) frank , personal contact, (b) fiction, and (c) anthropology. Of these methods, *nothing* beats personal contact.
In the case of, for instance, Justice Powell: when he said "I don't believe I've ever met a homosexual" he was not just ignorant, but *wrong*. He had presumably read the briefs and could do the math, which would lead a clear-thinking person to conclude that he *had* met homosexuals but didn't know it.
Powell would have decided correctly if he had proper information, but all he had was a gaping lack of information.
But he was refusing to recognize it, and he had the statistics there that should have told him otherwise. The stats *must* have said that 5% or so of the population is homosexual, so he *must* -- had he been honest and clear-headed -- realized that, in his very large acquaintance, there must be some number of homosexuals.
Part of the problem of being on the Supremes is that you're so powerful that people won't tell you to you face that you're wrong, even when you're wrong to *their* faces -- as Powell was wrong to Chinnis.
Now personally, I think Chinnis failed, here. There aren't many times in most people's lives when they have the chance to be truly brave, to stand up for truth and make a difference -- but he had one, and he shrank away.
Posted by: Doctor Science | May 10, 2009 at 12:52 AM
this is quite an interesting thread to me. and i did have the additional thought that perhaps like the security council in the UN, the supreme court really should be expanded so that it could indeed include more of the representative diversity of the nation; it just seems unsatisfactory to me that in the 200+ years history of our country so few women and the now many minorities (however you want to define these) have been so under-represented at all levels of legislative, executive and judicial power, but especially at the judicial level. and yes i do think there should even perhaps be a permanent seat on the supreme court reserved for a native american representative as well.
why the composure of the court has stayed so consistent over time (white, hetero and male are the main characteristics that come to mind), while the actual makeup of the society at large has become so diverse, is truly a mystery to me.
(a bit off topic i realize but there it is. and thanks to gary for the info on thurgood marshall.)
Posted by: michaelj72 | May 10, 2009 at 04:48 AM
Maybe I'm a bit jaded, because I'm speaking from a European perspective, but I wouldn't get up my hopes up that representatives of groups previously underrepresented will bring about significant societal change for the better. Think Thatcher and Merkel or Wowereit, Delanoe, Fortuyn and Westerwelle - the record is very mixed, which I find entirely unsurprising.
There's usually a brief period when the novelty factor generates good press and sympathetic public opinion, but then it's down to business and how that is conducted will depend largely on factors other than group membership, so it's best to focus on these when evaluating candidates.
Posted by: novakant | May 10, 2009 at 07:57 AM
michaelj72, I understand your concerns, but if you think the people who judge you should be at representative of regular people, then the supreme court model is plainly a very wrong model.
You're better of ditching it in favour of a "supreme jury".
Some nations, notably Canada, have made good use of deliberative citizen's assembles - that is, a 100-something person random sample of the population. Mostly they're used in connection with referenda, to decide which options should actually be on the referendum ballot, and to come with a recommendation. They have worked very well. You'd think they'd never agree on anything, but they do, with surprisingly large margins.
Sortition works. If you're going to change the constitution anyway, consider it for the supreme court.
Posted by: Harald Korneliussen | May 10, 2009 at 08:07 AM
novakant: that representatives of groups previously underrepresented will bring about significant societal change for the better. Think Thatcher and Merkel or Wowereit, Delanoe, Fortuyn and Westerwelle - the record is very mixed, which I find entirely unsurprising.
Indeed. On the other hand: they do tend to be supportive of basic human rights for their own groups, which is something, when there are powerful political forces trying to take those human rights away. As for example, Margaret Thatcher routinely voted pro-choice whenever the issue arose in the UK Parliament, which gave a lead to Tory MPs who might otherwise have been swayed by tabloud journalism into thinking they should vote against human rights for women. (It's just about the only political issue on which I could ever have found political agreement with Thatcher, and I've come to appreciate it more considering how pervasive anti-choice rhetoric is in right-wing circles.)
Harald: but if you think the people who judge you should be at representative of regular people, then the supreme court model is plainly a very wrong model.
Fairly obviously, supreme court judges are always going to be, well, judges - highly privileged and arrogant people. But there seems no reason to restrict that group further by arguing that only straight white men need be considered for inclusion.
Posted by: Jesurgislac | May 10, 2009 at 08:33 AM
On the other hand Socrates had some bad experiences with large (500) democratic courts ;-)
I think it is inevitable that (at least today) a SCOTUS member would have to be someone with professional experience in law (which is not the same as being a lawyer). What could be possible is a group of (lay) citizens (with constant changes in membership) instituted as a permanent advisory board to the court. That group could either be randomly composed or with slots for certain groups (e.g. different religions, ethnic minorities etc.) That board could not force any decision but would have to be heard before any decision is made and might be authorized to attach opinions to them.
Posted by: Hartmut | May 10, 2009 at 08:42 AM
I will be happy if we get a judge who isn't a rightwing activist ideologue determined to impose ideas on the Constitution that didn't even exist back when it was written.
The problem in my mind isn't so much a matter of getting someone who represents the ordinary person as getting someone who isn't an elitist, mentally occupying an ivory tower of ideology and unable or unwilling to process feedback from the real world. Scalia comes from a ordinary background but he is an excellent example of an elitist--overtly disdainful of everyone who isn't him. He hides behind ideas-his ideas. He occupies his own personal ivory tower and from that vantage point, above the world in his own eyes, he issues opinions which he rationalizes have sometihng to do with the Constitution but which in fact are nothing more than the relfections of an out of control ego. He don't seem to care about the real world, nor does he care about the effect the application of his ideas will have on the real world. It's all about Scalia who is smarter than everyone else. How does he know he's smarter than everyone else? Because hardly anyone agrees with him,that's why, so he he must be right.
(BTW before anyone screams at me about how I can know all this about Scalia: well, I don't KNOW this stuff about Scalia, but I sure as hell got this impression about him from his words and his demeanor during the interview with him on 60 Minutes.)
Posted by: wonkie | May 10, 2009 at 08:49 AM
Even though he comes across that way, it's more likely that he's trying to reinforce a view that he grew up with, and that I'd argue more people share than just a select few. His "fatherly" ego, where he knows exactly what's right and what's best really is more a symptom of that view he's reinforcing, not something particular or particular about him; it's part and parcel of his shaping of society and he does his job with gusto.
Posted by: mattH | May 10, 2009 at 11:16 AM
"How does he know he's smarter than everyone else? Because hardly anyone agrees with him,that's why, so he he must be right."
Mandatory Dilbert:
http://dilbert.com/strips/comic/2008-08-11/
About Socrates... he had been the iconic teacher for a lot of anti-democratic young nobles who'd betrayed Athens to Sparta. Kind of a Leo Strauss of his day - except it was probably not Socrates who had inspired them to their treason (unless you think Plato's later works give the most correct impression of his philosophy).
I do not think he would have fared better against a professional judge, sadly.
Posted by: Harald Korneliussen | May 10, 2009 at 11:39 AM
"Fairly obviously, supreme court judges are always going to be, well, judges - highly privileged and arrogant people."
On the contrary, prior to the last twenty-five years, many Supreme Court Justices had no judicial experience whatever. FDR appointed William O. Douglas, his Securities and Exchange Commission head, Senator Hugo Black, and Attorney General Robert Jackson. Richard Nixon appointed his Assistant Attorney General, William Rehnquist. Eisenhower appointed California Governor Earl Warren. Arthur Goldberg was JFK's Secretary of Commerce. Byron White was JFK's Deputy Attorney General. Tom Clark was Truman's Attorney General. Fred Vinson was Truman's Secretary of Treasury, and a former Congressman. Truman's pick, Harold Hitz Burton, was a Senator, Congressman, and former mayor. Robert Jackson was FDR's Attorney General. FDR's pick, James F. Byrnes, was a Senator. Roosevelt's pick, Frank Murphy, was Attorney General, and Governor of Michigan. FDR's pick, Felix Frankfurter, was one of FDR's advisors (and shades of Cheney, head of the selection committee FDR named to pick a SCOTUS nominee). FDR's pick, Stanley Reed, was Solicitor General.
Heck, George W. Bush tried to appoint Harriet Miers, his counsel.
None of these people had any judicial experience before being named to the Supreme Court.
I can just keep going and going like this.
The norm until Richard Nixon and Gerald Ford was for it to be common to have non-judges appointed to the Supreme Court. More SCOTUS Justices were never judges than were judges, until very recently. Richard Nixon began the modern trend of mostly picking federal appellate judges because he wanted to pick a southern racist judge, and thought that picking an appellate judge was the easiest path, even though, with G. Harrold Carswell, and Clement Haynsworth, he failed, and wound up appointing his non-judge racist toady, Rehnquist, as well as good choices Lewis Powell and Harry Blackmun, who were also appellate judges, and thus able to get past the Senate after Nixon's previous attempts at unqualified appointees.
And Supreme Court Justices aren't judges: they're Justices.
Posted by: Gary Farber | May 10, 2009 at 11:55 AM
Gary: "Justice" as a title is just an archaic term for judge, isn't it?
Anyway, while it is interesting that these appointees you list did not have judicial experience, I'm not so sure the lack of that would prevent them from being "highly privileged and arrogant people", especially after they'd had their positions for a couple of years.
Posted by: Harald Korneliussen | May 10, 2009 at 12:07 PM
"Anyway, while it is interesting that these appointees you list did not have judicial experience, I'm not so sure the lack of that would prevent them from being 'highly privileged and arrogant people', especially after they'd had their positions for a couple of years."
True, although many Justices have been characterized by biographers and contemporaries as otherwise. For instance, neither David Souter nor Ruth Bader Ginsburg are said to be anything of the kind.
Being a Justice isn't like being a politician; most people don't recognize their faces, they don't show up on tv doing their job, or show up on tv much at all, and so on.
Until the last couple of years, when occasional recordings of questioning sessions were allowed, people didn't generally know them other than through their confirmation hearings, and court transcripts, and only junkies paid attention to those.
Oh, and a glimpse of them during the State of the Union addresses, and a glimpse of the CJ at an inauguration.
"Anyway, while it is interesting that these appointees you list did not have judicial experience,"
As I said, endlessly backwards, as well; I just stopped listing because most Justices before then weren't federal judges, and so many weren't judges of any kind, either.
Posted by: Gary Farber | May 10, 2009 at 12:18 PM
Thanks, Gary; I hadn't realized that the 'tradition' of considering elevating existing judges as the norm in Supreme Court selection was as new as Nixon.
Posted by: Nell | May 10, 2009 at 02:25 PM
Well, it's not that uplifting a federal judge was out of the norm; it's just that it was perfectly normal not to.
Among the people I'd like to see Obama nominate: Tammy Baldwin. Howard Dean. Jennifer Granholm. Bernie Sanders. Christine Gregoire.
And how about Hillary Clinton?
Posted by: Gary Farber | May 10, 2009 at 03:36 PM
For non-politicians, it's too bad Elizabeth Bartholet isn't younger.
Posted by: Gary Farber | May 10, 2009 at 03:46 PM
Susan Sturm.
Oh, and since conservatives are apt to object to anyone President Obama nominates, here's a nominee for fans of in-your-face.
Posted by: Gary Farber | May 10, 2009 at 03:52 PM
I choose the term 'experience with law' deliberately to avoid limiting it to lawyers and judges and I even qualified it with an 'at least today'.
And my Socrates comment was ended with a ;-) not by mere accident.
Plato was a precursor of what became fascism (and he was quoted approvingly by the more learned proponents). What of that was actually Socratic is open to dispute. The probably most true-to-life portrait is the Apologia and that is quite ambiguous (and full of subtle insults).
Posted by: Hartmut | May 11, 2009 at 07:46 AM
To make it even more current, I've been talking up Dawn Johnsen. But Guinier works, too.
Posted by: mds | May 11, 2009 at 10:17 AM
"Among the people I'd like to see Obama nominate: Tammy Baldwin. Howard Dean. Jennifer Granholm. Bernie Sanders. Christine Gregoire."
Me gusta!!
"And how about Hillary Clinton?"
Woo hoo!
The troubled souls of Vince Foster and Jim McDougal will be channeled in NRO posts for months. And where are those travel office documents, Madame Secretary?
I'll bring the popcorn.
Posted by: russell | May 11, 2009 at 10:30 AM
ScentofViolets:
Do you mean as you understand the theoretical concept, or as you understand the concept which plays out in the real world?
In the U of M suit which is alluded to above, the litigation discovery process revealed that the university counted being black as worth more than (20 points) the entire difference between the worst possible score on the SAT and best possible score on the SAT (12 points). Whatever you may think about the ability of the SAT to discern fine gradations in student ability, those concerns are completely off base when contemplating the difference between the worst possible score and the best possible score. Or comparing it to other characteristics, it represents an entire grade of level of difference in GPA (20 points).
And considering that the litigation revealed an admittance rate that was in line with other universities of about the same level, it seems very likely that the magnitude of the difference (which I would characterize as huge) is similar at other universities, though they are not stupid enough to reduce it to written memo form--especially now.
Hilzoy:
I agree with this in theory, but I'm at least somewhat skeptical in practice. It doesn't HAVE to be opposed, but once you start searching based on a non-critical qualification, the likelyhood of focusing on that to the exclusion of more pertinent qualifications goes way up. See for example Janet Reno, who was if I recall correctly 3rd choice in Clinton's search for a politically helpful female attorney general. Her main non-female qualifications from his political point of view were that she was from Florida (a key swing state) and had a reputation for being tough on crime (largely gained as we know now from her office railroading innocent pre-school teachers with trumped up evidence that they were using children in Satanic sex rituals).
If we need to use these kind of qualifications, I would suggest that focusing on a gay Justice, or a female Justice, or a Hispanic Justice is the wrong way of going about it. Take a pool that includes gay people and women and Hispanics and any other minority you are interested in having represented and pick the best from the larger group. Which may very well be what Obama is doing for all I know.
Posted by: Sebastian | May 11, 2009 at 12:56 PM
I have an interesting anecdote on "I Don't Believe I've Ever Met A Homosexual".
I was at a large holiday party put on by one of my friends. Her husband is important (medium level) in the military. He had a large number of his military buddies at the party. For some reason that I don't remember (which didn't seem inappropriate at the time, so I'm not saying anything bad about that) his wife mentioned while we were talking that I was gay. He said "I always hear so much about gay people in the military but I've never met any". I wanted to say the whole truth which would have been "Strange that you would say that, I've seen two of the friends you have at this party out at gay bars, and one of them hit on me in the last 6 months". But what I actually said was "They are there, I just suspect that they aren't telling you about it."
This was about 5 years ago. In California.
Posted by: Sebastian | May 11, 2009 at 01:02 PM
Awesome anecdote, Sebastian.
Posted by: glasgowtremontaine | May 11, 2009 at 03:30 PM