They quote a black female lawyer (Alisia Adamson Profit, 38): "People are going to say she only got this because she was a Black woman, and that could not be further from the truth. She would not even be considered if she wasn’t qualified, prepared and ready. There will be a segment that will discredit her ability to serve."
First: Why is the NYT — the voices sought out by the NYT and featured here — implying that affirmative action is disreputable?! I read the NYT every day, and it's my impression that the NYT strongly supports affirmative action and is especially keen to support it this year, as the Supreme Court is about to consider 2 cases challenging affirmative action in higher education admissions. So why should there be any stigma — or any recognition of stigma — to getting a position through affirmative action? To say that affirmative action devalues a person's achievement is to talk like Clarence Thomas. If you support affirmative action, say hooray for affirmative action. Isn't it wonderful that President Biden is openly committed to affirmative action and about to perform it? If your answer isn't yes, NYT, please do your soul-searching in express and clear words. Don't muddle up the discussion!
Second: Ms. Profit's statement doesn't make sense. The nominee will almost certainly be "qualified, prepared and ready" and "ab[le] to serve," but that won't negate the fact that that she "only got this because she was a Black woman." We know from Biden's express commitment that only black women will be considered. If this person who becomes the nominee were not a black woman, then it is plainly the case that she would not have received the nomination. Is the problem that "people are going to say" what is obviously true? Why can't we say it? Is it a secret? Is it shameful? But Biden is openly saying it, and as I've spelled out in the previous paragraph, you need to decide whether you are pro-affirmative action or not.
Third: Biden's advance announcement of intent prevents him and everyone else from doing what is normally done — asserting that the person chosen is actually the very best judicial mind in all the land. Maybe the theater of excellence is desirable and uplifting, and maybe it's bad to single out this candidate to be deprived of the glory of that rhetoric, but she won't be the only one. It happened to Sandra Day O'Connor after Ronald Reagan committed in advance to choosing a woman. But maybe it's time to be a lot more honest, mature, and sophisticated and admit that the President is NEVER choosing the very best one. He's systematically eliminating people who are too old or who have the wrong politics, and there are surely endless other attributes that get you stricken from the President's list that have nothing to do with how wonderfully you can decide legal cases.
***
The slogan popped into my head: "Why not the best?"
Yes, whose slogan was that. I needed to remember because I believed it would make my point. Ah, here:
Isn't it pretty to think we could have the best? Oh, he's the best, Jimmy Carter.
No, he wasn't the best, but he was the one we came up with at the time, at the end of a grueling, ridiculous process that never gives us the best. We're lucky if we even get someone reasonably good and not horrible.
The Justices on the Supreme Court — now, and after one is replaced by a new one who will be a black woman — are good enough but presumably not the best. Surely, the best never even make the short list. How could they? They can't — and shouldn't — fit the needs of the President.
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123 comments:
You want the best because a bad decision can screw up the legal system for decades over nothing, e.g. civil rights law freedom of association (ought to be only in monopoly markets) and abortion (took decision away from voters).
Your black woman is going to say women should be able to get abortions regrdless and everybody has to serve her. There is for her no structural issue.
My Dad would have called this a self-fulfilling prophecy.
Why, on earth,
would Anybody think that someone picked on the basis of their race and sex;
was picked on the basis of their race and sex? It just makes No sense.
Remember the gay baseball league that required players to prove they were gay. It was to avoid getting ringer players from a 20 times straight larger population who were the best of that larger group instead of just the best of the much smaller group, making their team unfairly better.
And that was without the force of genetic population differences.
The NYT story though sounds like a story about feelings, in this case of the eventual nominee. So it has reader appeal for their readers.
Far from being against affirmative action, it's just another brick on the load of the victim group that is even more victimized by it.
You need affirmative action because of structural racism, the shadowy force in the left's account of the world. That's where the blame goes.
"and that could not be further from the truth. "
It's more like "it's not very far from wrong," as the old song would have it. But yes, lots of things easily could be "further from the truth" than that suggestion; is this supposed to be some sharp legal mind using this formulation?
Define "the best."
Truman was not the best in the sense of "most talented" (except perhaps on piano), but he was the one who adequately fit the needs of multiple constituencies who made the decision, which by the definition in place made him the best.
That said, your criticisms of the NYT's logic are spot on. I think in their hearts they know right from wrong, hence the defensiveness.
Clarence Thomas escapes the affirmative action characterization because he's found a substitute for any brainpower that he lacks - a strong intuition about structural failures. It's an interest that frames everything, so he gets the right answer. The ability to make feelings secondary.
Depending on originalism inherits the founders' intuitions, even if you don't have your own.
Whatever his method, it's a good one for the court.
No women in the founding fathers.
Anyone who has been in the workplace in the last few decades is aware of examples of affirmative action hires or promotions, where an otherwise unqualified individual was installed in a position at which they were unsuccessful.
The resentment it engenders among those passed over is the predictable consequence of affirmative action policies. These may never be acknowledged publicly, yet they are very real nonetheless.
I do not suggest the candidate Biden selects will be unqualified. But the fact that this suspicion exists demonstrates the inherent flaw in the concept of affirmative action.
Anita Hill is a black woman. That would be great, if you're going to go that route.
And wow, was that song in the Jimmy Carter video the most insipid thing I've heard in a long time?
It depends on what the meaning of the word "best" is. More accurately, the word "best" is meaningless unless we define the standard used to determine the "best."
"Surely, the best never even make the short list."
Well, Robert Bork made the list. The only candidate ever rejected because he was known to be too intellectually persuasive. If I remember correctly, he never had a ruling reversed.
What could possibly go wrong? After all, America is so strong...
It has to have enough design margin so that progressive visionaries can apply their new improved justice template to the foundation without any danger of damage or collapse. Right?
That's what I've always believed!! (stamps foot)
Doesn't it? In service to a vision of a better world? (storms off)
The soft bigotry of low expectations
Voter ID is bad because Blacks find the process to complicated. That is low expectations
I didn't follow politics very closely back when Clarence Thomas was selected. However, I assumed that Bush Sr wanted to play it safe by picking a black candidate since the retiring justice, Thurgood Marshall, was black. It surprised me that the liberals were so up in arms against Thomas because, horrors, he was a conservative and probably wouldn't vote the way they wanted him to. That was when I first started to understand what a cynical business politics is.
At this point only a racist misogynist would argue that Garland should be nominated — Biden has taken that question out of play.
Likewise, by Valentine’s Day the discussion will be down to Brown-Jackson, Kruger, and a couple more. No significant group of Democrats will be strongly opposed to or in favor of any of them. The choice will be un-controversial. Biden is a Stable Genius!
Wanting the benefits of AA - getting lots of good (& free) stuff based solely on the color of your black skin - but not wanting to be known as an "AA scholar" or an "AA hire."
Welcome to the Democrat Party.
When you exclude people without Ivy League degrees, you really do start with less than the best. Amy Comey Barrett is the only current Justice without a degree from Harvard or Yale.
Q. "So why should there be any stigma — or any recognition of stigma — to getting a position through affirmative action?"
A. 'Cuz in their shriveled little heart of hearts they KNOW that AA is inherently unfair and is discrimination.
You want the best because a bad decision can screw up the legal system for decades over nothing, e.g. civil rights law freedom of association (ought to be only in monopoly markets) and abortion (took decision away from voters).
Maybe a “good enough” Justice would feel more compelled to follow the law?
Maybe “the best” legal minds should be making arguments rather than opinions?
Note to black women in the legal community -
The "wise latina" has done nothing to allay people's suspicions that she was an AA hire.
Blame her if you think such suspicions are unfair.
Welcome to the wonderful world of “Equity”. Disparate impact rules. Equality of opportunity must not be the goal, as that is now “racist!”. What this now creates is the “Black Female” Supreme Court seat. We have a “Black Male” seat, which according to The View is currently vacant. Sotomayor no doubt sits in what has now become the “Wise Latina (Latinx anyone?)” seat. When the first “Wise Latino” is picked by a democrat, so to shall that seat be be “assigned at appointment”. And so on. To make this work out mathematically, we’ll need to expand the Supreme Court to 100. But that won’t work because even if we take at face value the 1.4 million in the US who supposedly self-identify as Transgender, we need at least 150. Yes, that sounds about right, a “Supreme Council” to rule.
If your answer isn't yes, NYT, please do your soul-searching in express and clear words. Don't muddle up the discussion!
The goal of NYT here is to muddle up the discussion.
Who says they’re bad journalists?
"The resentment it engenders among those passed over..."
Wilber, the resentment extends far beyond those passed over. The AA hire, being nearly unfireable, then gets passed from department to department, division to division, sowing resentment throughout the organization like an infectious Omicron spreader.
When it comes to a dangerous, nay deadly, AA hire, I don't think anyone will top Major Hasan.
Of course she/they will be an AA hire. Otherwise Biden wouldn't have stipulated that she/they must be a Black woman.
Affirmative Action placements do not help minorities, and they know it. If you have ever worked under one, you know this. Affirmative action only looks good to the Ignorant.
Since we're all living on Native American land, shouldn't there be at least one Sup Ct seat belonging to them?
And as someone said above, Bork was an example of someone who really was the cream of the crop, and look at how he was treated.
Remember, when you paint yourself into a corner, you leave some of the floor untouched.
Well, there go the unsupervised comments.
My guess is that she will gather less flack than the average Supreme Court nominee and that whatever flack comes her way will be dismissed as racist. If she doesn't turn out to have had an affair with Angela Davis or Snoop Dog in the past, I'll be okay with her...... This is how the system has always worked. Sometimes the Prez appoint someone super smart and pretends he's above politics.. That kind of lofty attitude wins votes. Sometimes the Prez appoints someone to reward a particular constituency. That also wins votes....The guiding principle is to appoint someone who wins votes.
"what is normally done — asserting that the person chosen is actually the very best judicial mind in all the land"
And what is "normally done" is also BS.
But most nominees are in fact "best" in a different sense, as the end of the post suggests: best in serving the political needs of the president.
It's a political appointment to a political body, a choice for a vote. Law and talent have nothing to do with it.
Sometimes the smartest person isn't the wisest person. In like way, sometimes the best looking woman isn't the most beautiful woman. Compare Joni Mitchell to Kate Perry. Kate Perry is undoubtedly better looking, but she does not radiate beauty the way Joni MItchell does. Moreover,listening to her music does not make you a better person as happens with the works of Joni Mitchell. If you were given a choice, wouldn't you rather spend the rest of your life with Joni Mitchell and her music rather than with Kate Perry and her music.....We should choose our next Supreme Court Justice with the scrupulosity that we choose our favorite Spotify performer.
Part of the movement to keep affirmative action afloat involves disparaging all attempts to assess merit objectively. Hence, "there's no such thing as IQ," the elimination of SATs, the preferencing of "lived experience" over data, etc. By discrediting objective measures of ability and achievement, one can more easily pretend that racism is at the root of all differences in outcomes.
"You want the best because..."
I want a billion dollars. Are you interested in why?
You're not going to get it. Start with reality and work from there.
She would not even be considered if she wasn’t qualified, prepared and ready.
Good to know she will be both prepared and ready. I was worried she might be prepared but not ready or ready but not prepared.
Let's suppose you are facing a delicate, risky, potentially life-saving operation and learn that your surgeon, who is black, rose to his position in part because of affirmative action and policies that promote inclusion and diversity. If only in the back of your mind, do you think that he might be a fine surgeon but I want someone else?
Let's suppose you are facing a delicate, risky, potentially life-saving operation and learn that your surgeon, who is black, rose to his position in part because of affirmative action and policies that promote inclusion and diversity. If only in the back of your mind, do you think that he might be a fine surgeon but I want someone else?
I was one of the first women admitted to a competitive all-male college. Every one of the women in that freshman class entered in the top 10% of that class based on our high school credentials. We were valedictorians, National Merit Scholars, and had perfect or near perfect SAT scores. Any of us could have easily made the cut if we were guys. Yet many of the professors treated us like we were only there because we were women. We survived and thrived because we were "the best", but many AA students don't because they aren't. The problem is when they don't, they make it harder for the people in the same demographic to be taken seriously. Has Harris made it easier or harder for another woman to be Vice President? Has Sotomayor done anything for Latinas who are really wise? Anyone who makes the grade based on his or her own merit is hurt by affirmative action, and he or she knows that better than anyone else.
"and that could not be further from the truth."
She's just mixing up being qualified and being selected. It absolutely not true that the person who is chosen was chosen solely because she's black (and female) but it is also true that if she were not black (and female) she would not have been chosen. That's all because of Biden's pre-commitment.
But it's also the case that if he hadn't said anything about picking a black woman and then he picked a black woman that some people would say that she was selected because of her race and sex, and you could feel put out that people were saying that and insist that nothing could be further from the truth.
But, clearly, given Biden's pre-commitment, we know that race and sex were a necessary qualification. You can still insist that this person would also have won in a completely race-blind, sex-blind competition. Or you could say that being black really does add something to the quality of the decisionmaking and so does sex. If that factor is visualized as big enough, you can construct an argument that the strongest candidate for the opening is necessarily a black woman, and limiting the short list to people with those qualities is limiting the list to the best.
Just say it clearly and see if you like what you are saying. That's all I ask.
"Well, Robert Bork made the list."
And surely someone better than him did not.
If he was so great, why did he get tripped up on questions from Joe Biden.
Bork made the biggest gaffe I've ever seen in a confirmation hearing ("intellectual feast"), and Biden was just tossing out sophistry (like "police in your bedroom!").
"The Best" always gets narrowed way down. Republicans want the best conservative candidate. Democrats want the best liberal candidate from approved identity groups. The judges who were chosen with no race or gender considerations were a pretty good group: Kavanaugh, Gorsuch, Alito, Roberts and Breyer. Kagan might fit in this category, as well as the late Ruth Ginsberg. Sotomayor was chosen only for her ethnicity, and it shows. Thomas was chosen because of his race, I rate him as the strongest intellect on the court.
Clarence Thomas escapes the affirmative action characterization because he's found a substitute for any brainpower that he lacks - a strong intuition about structural failures....Depending on originalism inherits the founders' intuitions, even if you don't have your own.
Justice Thomas is an originalist, but he is also influenced by unwritten natural law. Unlike the originalist Justice Scalia, who was a positivist and textualist. In other words, it was Scalia who simply followed what was written without having to have his own intuitions.
So, you want to try that smear about "brainpower that he lacks" with Scalia?
Or do you reserve that for the Black guy?
This has been written about for years by a number of people, notably Thomas Sowell and Shelby Steele. Of course, one of the side consequences of affirmative action is that people will have in the back of their minds that you may have got that position only because of your color or gender or ethnic group. That you don't really have the goods to do that job or to be in that position.
And of course, sometimes this is bullshit but often it's reality. Some people are put into places or positions that they are not equipped to handle. Not that they do or don't have the brains, but that they may not have had the proper level of education or experience necessary to be at that University or to do that job.
Like Harvard. Or the Supreme Court. Or the White House. Or a medical practice.
"If he was so great, why did he get tripped up on questions from Joe Biden."
A confirmation hearing is a show trial, not a setting for sober consideration of judicial character and knowledge. Bork's record for meticulous reasoning is hard to match. Reasoning is not a topic Joe Biden is capable of discussing.
Back in the ancient days, confirmation hearings were a short formality. We got good justices from that system.
When a media-party apparatus who act s one - say out of the gate that the nominee will be a specific gender and race - yeah that might happen.
Actually, there are quite a few people who are "the best" to qualify for the Supreme Court, whatever that means.
Let's not pretend that whoever is picked needs or is the single most "best of the best of the best, sir!" Certainly history has shown that many justices are complete sh*t for brains. Certainly contemporary experience shows that most of the elites and "experts" in this country are complete sh*t for brains who eff up everything they touch.
It's less about being some big head brainiac intellectual and more about someone who actually has the right conception of what being a justice is all about and what the Constitution and law is about.
The "best" is a jurisprudential question, not an intellectual or experiential or social class one.
This nomination is only significant to see how radically disrespectful and unobservant of the Constitution she is. We already know she will vote in lock step with Democrat priorities and the other two Democrat politicians on the Court.
Is Affirmative Action anything like Systemic Racism?
Asking for a friend.
"Is the problem that 'people are going to say' what is obviously true?"
BINGO!
I thought affirmative action might be OK 55 years ago, when it was being peddled by that rapscallion, Lyndon Baines Johnson, but we have learned a few things since then, haven't we? How about the "soft bigotry of low expectations"? Isn't that really what is in play here?
Fifty-five years ago, people were worried that affirmative action "goals" (that was what we started with) would turn into quotas. Well, we addressed those concerns by turning affirmative action goals into quotas. That is leading today to the elimination of things like testing in the name of "equity".
That is the way we live now. Live with it, beneficiaries of affirmative action. It is the world you wanted. You got that merit badge, but everyone suspects you didn't merit it.
Someday, we may go back to a sounder concept of achievement.
I do not doubt that the AA nominee selected by Biden's staff will be qualified. The standards are subjective and elastic. The only perceived unqualified candidates that I recall were Harriet Miers and Sonya Sotomayor. David Souter is a close call.
What Biden's staff needs to strongly consider is the influence that their nominee will have on the other eight members of the Court. In that sense, she needs to have both intellect and people skills.
John Roberts will try to take the new Justice under his wing as he has done with Kavanaugh and ACB (and failed to do with Gorsuch). That will make for some interesting decisions.
If the standard for picking Justices was the “best” legal mind in the country, then Henry Friendly and Frank Easterbrook would have both been put on the Court, and Harry Blackmun and Sandra Day O’Connor would not have been nominated. That’s not, and never has been, the standard.
"But it's also the case that if he hadn't said anything about picking a black woman..."
But then he wouldn't be Joe Biden, and he may not have gotten the Dem nomination. The Biden gaffe-factor is fundamentally a product of his willingness to take cheap shots at his opposition and opportunistically make demagogic promises, accompanied by a disgusting, phony, regular-guy persona. Mitt Romney gonna put y'all back in chains. Check. If you don't support no ID voting, you stand with Jeff Davis, Bull Connor, and George Wallace (all Democrats, I note). Check. Don't worry Clarence Thomas, we'll handle this Anita Hill thing quietly. Check. Don't worry James Clyburn, I'll put a black woman on the Supreme Court. Check.
Biden got the POTUS nomination in part because of this promise, which has the effect of denigrating his own candidate. Nice work, Joe. We expect no less.
She would not even be considered if she wasn’t qualified, prepared and ready.
It’s much harder to make this argument when our Affirmative Action Vice President is so overwhelmingly unqualified, unprepared, and unready.
I read the post and at the end Tina Turner singing "Simply the Best" popped into my head.
You're simply the best
better than all the rest
better than anyone
anyone I've ever met.
Tina is the Best. I wonder if she's going to pull her music from Spotify.
I have never thought that a USSC nomination would be the best qualified. I don't even think that's the standard. I think it's just "qualified" or "well qualified". How does "best" creep in there? That's ultimately a subjective judgment, who's best. I think Tina Turner is the best. Someone else probably thinks Reba McEntire is.
Mostly I find it annoying that these men, whether it's Reagan or Biden, make promises intended to pander to women, as in vote for me, a man, and I'll make all your dreams come true by putting some random woman into that job or another. But I guess it works. Not for me, I didn't vote for either Reagan or Biden.
Ditto!
"Bork made the biggest gaffe I've ever seen in a confirmation hearing ("intellectual feast")..."
I'm genuinely surprised you feel that way, Ann. How was that a gaffe? It's wrong for an intellectual to be enthusiastic about confronting deeper questions?
I could imagine a Cardoza or a Holmes saying the same thing.
And wouldn't it have been timely to have an antitrust expert on the bench?
Cardozo. It was autocorrect not me.
"qualified, prepared and ready"
Not likely. Besides I'd prefer someone who's,
"tanned, rested and ready"
"You want the best because..."
I want a billion dollars. Are you interested in why?
You're not going to get it. Start with reality and work from there.
What followed might say what the best consists in: because a bad decision can screw up the legal system for decades over nothing
Stare defectus
Excellent. Ilya Shapiro who is supposed to be going to Georgetown on February 1, is in trouble (I believe) for saying we already know Biden will not have chosen the best person.
“Objectively best pick for Biden is Sri Srinivasan, who is solid prog & v smart. Even has identity politics benefit of being first Asian (Indian) American,” Shapiro wrote on Wednesday...
“But alas doesn’t fit into the latest intersectionality hierarchy so we’ll get lesser black woman,” Shapiro continued.
Does Shapiro know for sure that no black woman is as qualified as Srinivasan? What's crazy is to suggest there has always been some golden merit-based process, and what Biden is doing is some kind of brutal departure from that. Bullshit. What's even better is our host's suggestion that the very best probably have no chance of being considered by any president.
Wouldn't it be more correct to say they've been 'judged fairly as an Affirmative Action appointment'? Isn't that precisely what this exercise is, stated up front for all to see?
If the candidates are offended or frightened or concerned with these criteria, the best thing for them to do is to decline to be considered - and then state why. I could really get behind this kind of candidate and so could the rest of the country, I suspect. A prospective justice, selected on these grounds, who responds by renouncing them would both prove their mettle and help pull society out of this terrible, destructive, identity vortex. You know: Leadership.
>>"Black women in the legal community are bracing for the possibility that the yet-to-be-named nominee will be judged unfairly as an affirmative action appointment."<<
Sow -- Reap.
Part of the movement to keep affirmative action afloat involves disparaging all attempts to assess merit objectively. Hence, "there's no such thing as IQ," the elimination of SATs, the preferencing of "lived experience" over data, etc. By discrediting objective measures of ability and achievement, one can more easily pretend that racism is at the root of all differences in outcomes.
In the beginning we were told to ignore differences in race and allow people to compete against each other fairly. So things like auditioning for an orchestra behind a curtain so that race and gender could be ignored and only the quality of the performance be judged began.
Now we are being told that ignoring a person's race is in fact racism, and we must know a person's race so that we can discriminate in favor of some races and against others, because shut up you racist.
Brandon himself said this will be an affirmative action pick.
I don't understand the controversy.
It is a problem that every woman, black, hispanic or other preferred minority faces every day of their lives. They can never be sure whether they got the job because they are good or because they are a woman etc.
It is horribly corrosive to have to go through life always having that doubt.
Perhaps not having to go through life like that is the true "white privilege"
Women and minorities thank you progfas.
John LGBTQBNY Henry
As Barack Obama warned, Joe Biden has f***ed up putting a black woman on the Supreme Court.
"She would not even be considered if she wasn’t qualified, prepared and ready.
It’s much harder to make this argument when our Affirmative Action Vice President is so overwhelmingly unqualified, unprepared, and unready."
Or the Wise Latina.
My wife ran a Federal field office (Statewide jurisdiction) in a field entirely dominated by men. She was the first to do so. She grew weary of being placed in the front row of every conference (See! See. We have a woman!). She was a fixture on many panels about the present and future of the agency. She spent the first day or two demonstrating she belonged there. The next few were spent demonstrating she was the proper leader of the group.
She received every honor of her agency and the US Department she represented.
She fended off pressures for years to move to a Regional position or headquarters position. She declined, in part, because we were a two career family and happy where we were.
She can tll you all about the double edge sword of AA. She can also rage about lowering standards.
Due to AA, I wonder if the Black doctor got their place in medical school, internship, residency etc. because he/she is Black and not because they were the best candidate. Therefore, it makes me reluctant to have that Black doctor treat me since I want the best doctor I can find, not the AA doctor. Of course, there are exceptions and maybe the Black doctor was the best candidate but how wold I know that? AA makes all Black people in a professional capacity look suspect. So, AA can backfire and cause discrimination against these Black people that it’s supposed to be helping.
Biden made a promise to nominate a Black woman to the Supreme Court not the best of all possible candidates. Even if the Black woman might be the best, she will always have an asterisk next to her name as the First Black Woman on the Supreme Court (AA?) and that will be her legacy. Like Clarence Thomas. If AA is abolished, then this doubt will eventually go away. No favoritism because of race. As Obama (AA) liked to say “an even playing field.”
I think that “not very far from wrong” puts it exactly how I feel about it, it’s right to say it, but not that far from wrong, as opposed to the on the other side of the universe away from the “truth.”
Althouse says the President is "NEVER choosing the very best one." The very idea of there being a "very best one" for a judge does not fit. Judges are not like chess players, where a problem is set out -- pieces on a board, rules are applied, and a solution ultimately appears, either a check mate or a draw. One can correctly speak of a "very best chess master." But not so with judging. Americans may think so, but they are wrong. Judges bring their own experiences, leanings, predilictions, world view to the case in front of them. That is why the Supreme Court seems, at times, to be so divorced from the rest of the country, since the judges all share a very narrow set of experiences -- Harvard and Yale, government service, Circuit Court judgeships. It would be far better to pick from University presidents from state schools in states like Ohio, or governors, or heads of business, of other people who have been in contact with a broader range of citizens. Ethnicity may be a proxy for some of that, but it is a divisive one, and does not seem to get very far, it all, beyond the walls of Harvard and Yale.
Sometimes, long, long ago, people really believed they were getting "the best." Maybe they were.
The NY Times headlines and sub-headlines on February 16, 1932, the day after FDR nominated Benjamin Cardozo to replace Oliver Wendell Holmes. Cardozo would go on to be unanimously confirmed.
CARDOZO IS NAMED TO SUPREME COURT; NOMINATION HAILED; Hoover Sends Appointment to Senate and Confirmation at Once Is Expected. GEOGRAPHY" IS IGNORED President Selects a Third New Yorker for the Bench After Conference With Borah. REGARDED AS A "LIBERAL" Nation-Wide Support Was Based on Belief That the Judge's Views Resembled Those of Holmes.
"Why not the best?" sounds suspiciously like meritocracy, which we all now know is a tool of the oppressive White Patricarchy.
My wife, who was a nurse practitioner, went to two black doctors. One was an infectious disease guy, the other was a general internist. The significant factor ? Neither was an American black. One was Jamaican and the other was African. I taught medical students for 15 years. Many were black and I can only think of two that were American blacks. One flunked out and the other was weird. His parents were Black Panthers in Oakland and he had never spoken to white people.
Has Harris made it easier or harder for another woman to be Vice President?
Judging by the most left-leaning of my friends, both men and women, Harris is so incredibly nails-on-chalkboard bad that her ethnicity and gender won't affect any future VP from either side of the isle. She's so bad in so many ways that the general consensus is that anyone will be better regardless.
You could diagnose Biden's problem properly if he were a bovine. He's suffering from "hoof in mouth" disease.
OTOH ol Joe sometimes does what he's gotta do. And putting an asterisk on a Supreme Court nomination "only a black woman" was what he needed to get Clyburn's support and turn the corner on another failed Presidential run.
How many Justices can be said to be failures? Not that we disagree with their rulings, but that they just weren't up to the job?
Justice Charles Whittaker comes to mind.
"The NYT says that "Black women in the legal community are bracing for the possibility that the yet-to-be-named nominee will be judged unfairly as an affirmative action appointment.""
Duh.
Really, that's all the comment needed. Duh.
"People are going to say she only got this because she was a Black woman, and that could not be further from the truth.
Wait - did this woman quoted above not hear SCHMOTUS say he was only going to pick a black woman? People who say "she only got this because she was a black woman" will have stated an absolute truth.
“ I'm genuinely surprised you feel that way, Ann. How was that a gaffe? It's wrong for an intellectual to be enthusiastic about confronting deeper questions”
Because he was speaking to people who were deciding whether to trust him with great power and the purpose of that power is not to give the power-wielder personal gratification.
By showing that he thought of himself first, he leveraged his opponents. It may have been a true statement, but it was unwise for 2 important reasons
Judging isn’t an intellectual exercise in the abstract. It is about resolving real disputes between people.
The NYT is pro-AA and derisive of a racially selected Justice because elite leftists, e.g., NYT are all racist in the classic definition.
Only way to make sense of their odd stances.
NYT is right as often as a broken clock. Time and time and time again. Gell mann amnesia effect.
Well, I do think keeping the beard was a mistake...
But I hate the idea of Bork telling those mediocrities like Biden what they wanted to hear.
Perhaps he should have shed a tear and said, "I mean to right the wrongs of this unjust society. By any means necessary!"
Judge Judy for the Supreme Court!
Judge Judy for the Supreme Court!
>Ann Althouse said...
Judging isn’t an intellectual exercise in the abstract. It is about resolving real disputes between people.<
Actually, it is both, those two things not being mutually exclusive.
At least according to two experienced, erudite lawyer friends of mine who have appealed cases in the higher courts (don't know which ones). They have both emphasized to me in the past that at the Supreme Court level, judging - well, sure, while of course about resolving disputes - is pure recondite deliberation dealing heavily in the abstract and very much an intellectual exercise in the latter.
That's what the guys with rolled-up sleeves out on the front lines say, anyway.
would it be a smart move for Biden to leave court at 8 occupied seats and let them play music for chairs to choose ?
It takes a certain amount of chutzpah to demand and accept special treatment and consideration in hiring and selection processes and then demand everyone else pretend that said special treatment and consideration was not the cause of that person getting the position.
Ceciliahere said...
Judge Judy for the Supreme Court!
There's a great comic novel by Christopher Buckley called "supre injustice" (I think). After getting 2 highly qualified nominees rejected by the senate, the president nominates a lightly fictionalized judge Judy.
Hijinks ensue but it all works out in the end. "Judy" turns out to be a supremely qualified justice.
John LGBTQBNY Henry
Benjamin Cardozo, a Democrat appointed by a Republican and unanimously confirmed in an election year, is probably the best example of someone being picked because they were considered the best in the land. Cardozo was the Chief Judge on New York's top court and widely acclaimed for his path-breaking academic and judicial writings.
The closest example in my lifetime of such a lower court judge is Richard Posner, who is Breyer's age (and who wrote a typically quirky and interesting book on Cardozo's reputation I read). But Posner suddenly retired 5 years ago after getting into a ridiculous spat with his colleagues on the Seventh Circuit, and I suspect had he ever been appointed to the USSC, as many urged, he would have gotten himself into trouble like Judge Bork. Who was unquestionably a top academic and top appellate advocate, but revealed with his books after being rejected that he had a screw loose.
I thought the job of a Supreme court justice was to decide if a law was constitutional or not.
I thought the job of a Supreme court justice was to decide if a law was constitutional or not.
According to my friend who clerked for William Brennan, at SCOTUS the least influential justices are those who focus on resolving the dispute before them and the most influential are those who have a longer view shaped by a coherent judicial philosophy. O’Connor, who was appointed from the AZ legislature, tended to focus on the facts of the case to the obvious frustration of Scalia, among others. So I don’t think Althouse’s comment on Bork quite captures the dispute. The Dems were fighting a rear guard action to protect their activist court and they didn’t want a strong judge with a strong philosophy appointed. They used any means necessary to defeat Bork and muddy his name.
Disgusting.
What will the next quota be after a Black Woman?
Readering: "Who was unquestionably a top academic and top appellate advocate, but revealed with his books after being rejected that he had a screw loose."
"screw loose" = disagrees with leftist policies and make-the-law-up-as-you-go-to-achieve-the-democraticals-preferred-political-outcomes approach
Shouldn't the Wide & Wise Latina recuse herself from the Harvard AA lawsuit since she, being the beneficiary of AA, is where she is simply because of AA?
We already know how she's gonna vote on the issue when she hypocritically refuses to recuse herself.
One advantage the Biden nominee, whoever she is, will have is she will not be the stupidest Justice. The "Wise Latina" has that all sewn up.
Bork was the first one who was Borked. No one saw it coming. Everyone that came after, that is every Republican nominee, knew how to play the game. Give them platitudes, assume they are the enemy ready to twist every word and not good faith Senators "just asking questions". Of course, all they were doing is trying to get Bork to say something that could be turned into a sound-bite to destroy him on the Network News.
The whole debacle can be blamed on the AG Ed Meese. And you can blame O'Connor on Meese too. After the Reagan adminstration was over, I wonder if Meese was actually a sleeper agent of the Liberal/left. either that or he was the biggest conservative dumbass in history.
That Jimmy Carter ad was hilarious. Thanks for playing it. Of course, Jimmy Carter didn't show much "compassion"or "Love" for Reagan when he called him a racist. Or a crazy right-winger who wanted to "blow up the world".
Jerry Ford "Why not the Dumbest"?
What will the next quota be after a Black Woman?
Wolfkin.
I say, why settle for the best when the GOAT is now available?
On the issue of "the best," one shouldn't forget that getting a SCOTUS nomination is the fulfillment of decades of ambition and work. A lawyer/judge doesn't get into the position to even be considered without the personal ambition wanting to get there, and doing the things, and cultivating the relationships, and making the sacrifices, and avoiding the disqualifiers, starting no later than your 20s, and do all that for literally decades. And then you have to be in the right place at the right time, and finish first in the interviews including one with the President with others who have worked just as hard to get into the same place.
Exceptions, probably, but that's the game.
I don't think it's any different than working your way up any hierarchy such as becoming CEO of a pre-existing company owned by others. Same with athletics. You could say in the 1970s that Muhammad Ali was the best heavyweight fighter in the world when he held the titles, but you don't really know with any degree of certainty. Sure, Ali was an amazing boxer and the best of the boxers in the pool who competed but you can never know if he really was "the best" even at that time because there are millions who don't compete.
Truly, the question of who's "the best" is usually an unanswerable question even if everyone can agree on criteria.
And with Justice nominees, at least if you're a Republican president, there's the road not taken once they're confirmed and 'grow' in the position.
It's interesting that Benjamin Cardozo was confirmed unanimously. His family was Jewish (from Portugal) and he had multi-racial cousins born as "free persons of color" in South Carolina. One of his many cousins was the poet Emma Lazarus.
Diversity [dogma] (i.e. color judgment, class-based bigotry) denies individual dignity, individual conscience, intrinsic value, and normalizes color blocs (e.g. "people of color"), color quotas (e.g. "Jew privilege"), and affirmative discrimination. #HateLovesAbortion
Cardozo was a Democrat but it was Hoover who appointed him. He was an accomplished scholar and had been elected to judgeships in New York running on both party tickets. The court wasn't as political then and Cardozo had strong support from both parties.
Is the problem that "people are going to say" what is obviously true?
It is, and this isn't the only field where that's a problem. Conviction and moralism can be more important than facts. Some beliefs are sacred cows, and apparently affirmative action is one of them.
The gobsmacking thing is, as with Harris, announcing up front that you’re going to choose a token. Anyone who’d accept an appointment on that basis is inherently unqualified.
No, he wasn't the best, but he was the one we came up with at the time, at the end of a grueling, ridiculous process that never gives us the best.
An understatement. I rated him the second worst President ever, behind only Buchanan. After only one year in office Joe Biden has already moved Carter to third-worst.
Any young people on this thread, imagine having an 8.5% mortgage interest rate, and feeling incredibly lucky to have swung that deal as mortgage rates climbed towards twice that. Imagine trying to sell your house when no one can afford mortgage rates above 15%. Imagine trying to make a living selling houses when no one can afford to buy them. Imagine getting a 10% raise at work and losing ground to inflation. Imagine cars lined up for a half mile to pull into a gas station. Imagine finding out that our most elite soldiers died in Iran trying to rescue hostages, because the administration did not green light the operation until sandstorm season.
Why not the best? Ask the people who nominated Jimmy Carter.
I’ve lived through the administrations of LBJ, Jimmy Carter, Barack Obama, and now Joe Biden. Three of them are in the bottom five all time worst Presidents, and Obama is clearly in the bottom quartile.
@Another old lawyer, there isn’t much of him on film, but in my opinion Jack Jackson in his prime would have mopped the floor with Ali in his prime.
First: Why is the NYT — the voices sought out by the NYT and featured here — implying that affirmative action is disreputable?
Because we all know that it is disreputable racism, and opposed to individual merit.
I read the NYT every day, and it's my impression that the NYT strongly supports affirmative action and is especially keen to support it this year, as the Supreme Court is about to consider 2 cases challenging affirmative action in higher education admissions. So why should there be any stigma — or any recognition of stigma — to getting a position through affirmative action? To say that affirmative action devalues a person's achievement is to talk like Clarence Thomas.
Well, it's because Clarence Thomas is right, and the defenders of "affirmative action" are wrong, and everyone, especially the defenders of "affirmative action", knows it
If you support affirmative action, say hooray for affirmative action. Isn't it wonderful that President Biden is openly committed to affirmative action and about to perform it? If your answer isn't yes, NYT, please do your soul-searching in express and clear words. Don't muddle up the discussion!
To support Leftism requires muddling up the discussion, because Leftism is entirely evil, racists nd sexist.
Here's one interesting thing I did not know.
Joe Biden was asked to make a promise to put a black woman on the Supreme Court. And he didn't want to do it.
As part of a deal he made with congressman and House majority whip Jim Clyburn when he was on the ropes in the primaries, President Biden promised to nominate to this significant position a black woman
I had heard that. He had made a campaign promise. What I did not know was this...
Biden was forced to publicly vow to appoint a black woman to SCOTUS.
I guess I had assumed that he had just volunteered to nominate a black woman as a campaign tactic. It didn't occur to me that he was coerced. But it definitely makes sense. I remember how desperate Biden was to win South Carolina. He needed Clyburn's endorsement.
Journalists Jonathan Allen and Amie Parnes detail in their book that Clyburn pow-wowed with Biden during a break in the Dem debate on February 25, 2020
The lawmaker was becoming increasingly frustrated that Biden had not promised on the debate stage to nominate a black female Supreme Court justice
That's a rather interesting revelation. It means that Biden had no interest in an affirmative action appointment to SCOTUS. He was coerced into making the promise. Promise or you lose South Carolina, basically.
Of course Joe Biden (and the media) want to give Biden all the credit. But if it was such a wonderful idea, why did he resist it? Why did he have to be coerced into doing it? It was a campaign promise made to win South Carolina, and that's all it was.
Narrative: Joe Biden breaks the glass ceiling for black women everywhere!
Reality: Grubby little backroom deal to win South Carolina for Joe Biden.
If you want to make up narratives, how about this one?
Racist Joe Biden has to be coerced by our hero Jim Clyburn to nominate an African-American woman because racist Joe Biden really wanted to put another white male on the Court. It's a good thing Jim Clyburn is there to do the right thing, because nobody can trust racist Joe Biden.
Biden apologizes for saying You Ain't Black
But maybe it's time to be a lot more honest, mature, and sophisticated and admit that the President is NEVER choosing the very best one. He's systematically eliminating people who are too old or who have the wrong politics, and there are surely endless other attributes that get you stricken from the President's list that have nothing to do with how wonderfully you can decide legal cases.***
The slogan popped into my head: "Why not the best?"
Does individual merit matter, or not?
Does Biden*'s nominee want to be respected for her individual achievements?
Or does she want her "respect" of the form "hey, that's pretty impressive for a black woman"?
If the pool of potential nominees is restricted to only black women, then the only respect the nominee is entitled to is "that's pretty impressive for a black woman".
I want the President to always appoint the best legal mind who understands and accepts that the job of a "Justice" / judge is to be bound by the written US Constitution, by what those words and phrases were understood to mean when they were put in the US Constitution, then by written US laws, then by how those laws were understood when they were passed.
What the legislators "intended" doesn't matter. What the legislators told the public the law would do does matter (that goes into the whole "consent of the governed"). What the judge / Justice thinks the law should be, or what is right, or best, doesn't matter. If they want that to matter they can run for political office.
So, I want the most individuality meritorious judge who wants the job, and accepts those constraints. That's the "best" nominee.
A leftie wants a judge with different positions. So a leftie and I will disagree on who qualifies as an acceptable nominee.
If you think a person is defined by his / her skin color, then that will affect who you think is the "best" nominee".
It also means you're a racist pig and a bad human being.
It's nice the Dems are starting to realize that
Clyde said...
What will the next quota be after a Black Woman?
Hispanic Male
Then probably black male
At that point, the next one from the Dems will probably have to be trans
They might try to fit an asian or an indigenous person in there, too
I don't think Joe Biden hates black people, by the way. I think he was slightly racist when he was a young man. And now that he's older, he's gotten a little dumber and now has even less of a filter.
That's one of the scary things about Trump for Democrats, or Biden for Republicans, is that both of these men seem like they might be willing to say "fuck it" and then do or say something really stupid.
I frankly don't recall any racism from Trump vis-a-vis black people. You could definitely argue that Trump has a bit of xenophobia, and his animosity towards illegal immigration, or the Chinese government, sometimes spilled over into racial animosity. But against black people? If you look at the record, I think Biden actually was far worse.
Trump was buddies with Al Sharpton. That's not something you do if you hate black people. I think Trump can (and hopefully will) make serious inroads into getting African-American votes, especially from men, but also from any black person who doesn't want to vaccinate.
"You could definitely argue that Trump has a bit of xenophobia, and his animosity towards illegal immigration, or the Chinese government..."
Believing that his job as president was to represent the interests of Americans ahead of those of foreigners doesn't make Trump xenophobic.
How could anyone construe Biden promising to nominate only a black woman to the Supreme Court to be an "affirmative action appointment". Weird.
Maybe Biden was up with appointing an African-American woman but did not want to make a campaign promise because of the downsides in doing so. Reagan campaign promise made when very few available Republican women. Nixon wanted the historic first but could not find anyone. There were other Republican African-Americans when Marshall retired but folks around Bush also wanted someone young. Stretched to find Thomas.
Trump first met up with Roy Cohn when he needed a lawyer to fight federal lawsuit with ugly racial discrimination charges regarding his rental apartments. Wanted a bulldog but signed a consent decree admitting liability.
Readering said...
Maybe Biden was up with appointing an African-American woman but did not want to make a campaign promise
Except he DID make that promise
Thank you Readering for demonstrating just how clueless / dishonest you are
Saint Croix said...
I frankly don't recall any racism from Trump vis-a-vis black people. You could definitely argue that Trump has a bit of xenophobia, and his animosity towards illegal immigration, or the Chinese government, sometimes spilled over into racial animosity
You could, but only if you're an idiot or a liar.
He was the President of the United States. It was his JOB to put the interests of Americans first.
There's nothing "xenophobic" about wanting to punish criminals instead of reward them, and by definition all illegal aliens are criminals
Being anti the CCP is just what you do if you're a decent human being
And since the vast majority of the #AsianHate attacks are by (almost assuredly Democrat) blacks, you have to be pretty ignorant and / or dishonest to blame those on Trump
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