Judicial Nominees Can Be Diverse And Talented

Justice David Souter’s retirement from the Supreme Court of the United States naturally prompted discussion as to whom President Obama would name as his successor. Names were immediately raised – in particular, Judge Sonia Sotomayor of the Second Circuit Court, but also Solicitor General Elena Kagan, Judge Kim Wardlaw of the Ninth Circuit Court, Stanford Law School professors Kathleen Sullivan and Pamela Karlan, and Seventh Circuit Court Judge Diane Wood.

However, as the names of potential nominees buzzed through the standard cloud of legal and political gossip, a thread of contention emerged – namely, that the buzzed-about nominees failed to include any white males. Washington Post columnist Richard Cohen concurred with an article about Frank Ricci, complainant in Ricci et al v. DeStefano, an affirmative action case – which, not surprisingly, was a case heard at the appeals court level by none other than Judge Sotomayor, who decided against the complainant, a white male. In his article, Cohen claimed that

…the justification for affirmative action gets weaker and weaker. Maybe once it was possible to argue that some innocent people had to suffer in the name of progress, but a glance at the White House strongly suggests that things have changed. For most Americans, race has become supremely irrelevant. Everyone knows this. Every poll shows this. Maybe the Supreme Court will recognize this.

Cohen’s use of the Ricci case as a metaphor for the Supreme Court nomination process is blatantly obvious, but it begs the question: is there really anything wrong with taking the diversity of a country’s Supreme Court into account when nominating a justice?

Simply put, the answer is no. The merits of a diverse Supreme Court are obvious: a greater variety of life experience on a Supreme Court provides greater capacity to appreciate the arguments of claimants whose backgrounds and lives are increasingly more diverse with every year. A more diverse court is, innately, a more knowledgeable court.

Furthermore, one must consider diversity’s impact on the institution itself, as opposed to what the institution produces. A Supreme Court should reflect (within a reasonable extent) the makeup of the citizenry over which it presides. It is important that citizens recognize the Court as being theirs, a function of their legal system (determined in large part by their votes). A non-representative Court only serves to fuel the sentiment that the Supreme Court – and indeed the whole legal system – is “not for them.”

Granted, we should not allow the need for diversity to stop us from demanding expertise from our Supreme Court justices. Luckily, however, this is simply not a worry even worth considering. In both the United States and Canada, there is never any shortage of excellent legal minds worthy of nomination to the Supreme Court (or for that matter the various courts of appeal or other lesser judgeships).

All too frequently, the argument that promoting diversity through judicial nominations is merely a sign that the writer believes, on some level, that a “token” woman or minority cannot possibly be as qualified as a white male. As Dahlia Lithwick points out, in this 1995 column by conservative pundit Jeffrey Rosen, he criticizes the appointment of Diane Wood to the appeals bench (the same Diane Wood who, a decade later, is a highly admired judge and potential Supreme Court nominee) and pointedly distinguishes “minority members and women” from “the best available legal minds.” (Rosen also recently wrote a critical review of Sonia Sotomayor, wherein he quotes anonymous sources who refer to the judge as “not that smart” in what could generously be described as a hit piece.)

Finally, it cannot be emphasized enough that the idea of there being a single “best candidate” for any Supreme Court position is plainly a fantasy, because there isn’t one. At the level where these minds work, there is never one overwhelming genius, held in awe by all. Instead, there are a number of highly qualified individuals, all with their own personal peccadilloes and none without at least one controversial opinion (if not more) expressed during their legal career. When we have this luxury of talent, it only then makes sense that we take diversity of the Court into account as well, given that we have the option to do so.

We live in an ever more pluralistic and diverse society. Our Supreme Court – and America’s – should reflect that.