Julian Sanchez argues that, while Sonia Sotomayor was given special consideration because she’s a Latina at various stages in her life, her case is “pretty close to the ideal of how affirmative action is supposed to work.”
From a pool of highly qualified candidates, you let ethnicity act as a tiebreaker. It seems self-evident to me that John Smith with Sonia Sotomayor’s resume would be a reasonable pick for the Supreme Court. I think it’s equally evident that, when it came time to choose from the highly elite people with the requisite experience and qualifications, it mattered that she was a Latina. For an institution like the Supreme Court, I have no serious problem with that being a consideration, provided we’re talking about the choice between candidates who meet the prior threshold of excellence you want any justice to surpass. It’s not like there’s some Supreme Court SAT that lets you objectively rank jurists, such that Sotomayor is “unfairly” promoted ahead of “better” candidates. Once you’re down to that elite pool, the decision amounts to a president’s highly subjective assessment of the specific character, experience, and philosophy of individual candidates, bearing in mind the composition of the rest of the court. And when you’re carrying out that level of individualized analysis, for a job that includes interpreting the meaning of “equal protection” or “hostile work environment” for a diverse population, it’s hardly mysterious why membership in a disadvantaged group might seem relevant—it’s not independent from some external, independent criterion of “bestness.”
Sotomayor got into Princeton despite subpar SATs but excelled once she got there. She was appointed to the federal bench by George H.W. Bush over more stellar candidates because he was looking for a Hispanic nominee and had a small pool to choose from but she was both demonstrably qualified for the job and performed it well. Presumably, Bill Clinton wanted to make the appeals courts “look more like America” and tabbed Sotomayor from, again, a very small pool of qualified Latinas. Now Obama has done it again.
Sometimes, affirmative action picks are obviously stellar. Thurgood Marshall had a spectacular resume and would previously have been denied consideration because he was black.
Would Sandra Day O’Connor have been on the short list for the Supreme Court were she Sam O’Connor? No. Frankly, there probably wasn’t a woman in the country — let alone a Republican woman — who was superbly qualified for the Supreme Court in 1981. Most of the law schools had excluded women until not long before then.
Clarence Thomas, were he white? No, again. There just weren’t a whole lot of black Republicans to choose from and it would have been politically difficult to appoint a white justice to replace Marshall, thereby turning the court back into an all-white institution.
Both had the requisite skills to do the job and proved to be competent additions to the bunch. But neither were Antonin Scalia or Louis Brandeis.
My preference would be for every president to swing for the fences with every Supreme Court pick, going for a spectacular legal mind who would have the potential for greatness on the bench. But I’ve got no real heartburn with affirmative action picks, either, so long as they’re of the type Julian advocates. All manner of considerations other than intellectual greatness are going to factor in: party affiliation, ideology, personality, age, and, increasingly, confirmability come readily to mind. While ensuring diversity of race, ethnicity, religion, and gender isn’t something I much care about (so long as they aren’t negative factors) there’s no reason they can’t be “tiebreakers” or of minor consideration along with the others.
