When there’s no such thing as the best
I posted my post about the Sotomayor hearings over at Huffington, where I got a grand total of two comments. The second one raised an interesting point. (The first one was funny.)
Or, “Senator, would you simply prefer that the Court be comprised of the best legal minds in the nation, regardless or their race, creed, or color, despite the fact that such a concept is foreign to the race conscious liberals among us?” – Parducci
That’s a reasonable response (leaving out everything after the “despite”), but I think it’s fundamentally wrong, since it assumes there is a way to rank order legal minds. There isn’t, because there is no such order.
Look at the current Justices. You may be able to say that one particular Justice’s “legal mind” is not as good as the rest (“Judge So-and-So just isn’t up to snuff”), but there isn’t any real way to rank them in order (except perhaps by ow well their decisions accord with political sides). With heart surgeons, maybe you can look at the survival rates of their patients — and there are problems with that — but for judges, there aren’t criteria that result in a reliable, accurate, and agreed-upon quantitative ranking. Likewise, who would think there’s any sense in trying to numerically rank philosophers, historians, or chefs? You can see that a particular one isn’t in the top rank or is out of her league, but within that top rank, there isn’t a numeric ordering.
So, for nominees to the Supreme Court, the idea that we should take “the best legal minds” actually means that we should choose from among those who are highly qualified for the job. Since that class is far larger than nine, we get to choose our Justices based on many considerations, including the likely effect they’ll have on the political balance of the court and — yes — the likely effect they’ll have by bringing a diversity of experience and outlook. For the wisdom of a group is enhanced by including difference within it.
In fact, it would be interesting to see how the degree of qualification (based on whatever criteria one wants to suggest) going into the Court matches with the performance of the Justice over the course of her or his term.
