Limiting Yourself to 7% of the Potential Candidates …

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Ilya Shapiro, formerly of the Cato Institute and now executive director of the Georgetown Center for the Constitution (which is headed by my co-blogger Randy Barnett), tweeted this earlier this week:

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. But alas doesn’t fit into the latest intersectionality hierarchy so we’ll get lesser black woman. Thank heaven for small favors?

Because Biden said he’s only consider[ing] black women for SCOTUS, his nominee will always have an asterisk attached. Fitting that the Court takes up affirmative action next term.

Now the phrase “lesser black woman” is a bad way of putting this, but it seems to me pretty clear that it was just a poorly chosen way of saying “less qualified black woman.” And that strikes me as an eminently legitimate criticism of Biden’s position, though as it happens one I don’t share. I think we should be having more debate about this subject, especially in law schools, rather than less; and I certainly don’t think professors or center directors should be fired for expressing such views (as some having been saying should happen to Shapiro).

President Biden had pledged that he’d select a black woman for this seat (he said he’d appoint a black woman to the Court, and this is likely the one vacancy that he’ll be able to fill in this presidential term). This is to say that he has limited himself to roughly 7% of the population. That makes it highly unlikely that whoever he picks would “objectively”—I take it Shapiro means based on professional qualifications apart from race and sex—be the best of the progressive picks for the spot.

To be sure, it’s of course possible that a black woman would be the most qualified candidate. It just isn’t very likely, the same way that it’s unlikely that you’re unlikely to get the objectively best person for any position if you announced that you would choose someone whose first name starts with D (also apparently about 7% of the population). Indeed, a common argument in favor of nondiscrimination in employment—and in favor of taking affirmative steps to broaden the pool of potential applicants—is that by artificially narrowing the pool of applicants (or even by failing to correct for existing narrowness of the pool) you’d be missing out on some of the best candidates.

What’s more, Shapiro believes—quite plausibly—that in this case the artificial narrowing did indeed fence out the best candidate: Sri Srinivasan, who has served for 8 years as an appellate judge on the D.C. Circuit, and who many view as one of the smartest lawyers and appellate judges in the country. I’ve heard his name mentioned often in that capacity, much as then-Judge John Roberts was viewed that way when he was on the D.C. Circuit.

And while Judge Srinivasan is sometimes specially noted as a prominent nonwhite judge, my sense is that he would be included on lists of the top lawyers and judges entirely apart from his identity. The leading black female candidates are not, I think, generally listed on such lists; for instance, the top two candidates that have recently been talked about, Judge Ketanji Brown Jackson and Justice Leondra Kruger, are generally very well-regarded, but I don’t think they’ve made a name for themselves at quite the level of Judge Srinivasan. (This is no knock on either of them—to be a successful and well-regarded judge, as both of them are, is itself a great accomplishment.)

Naturally, others may rank judges differently in different ways; perhaps Judge Jackson and Justice Kruger should be on such lists entirely apart from identity. And we might also be suspicious of various factors that influence the ranking; for instance, it may well be that legal elites just focus more on federal circuit judges than on state supreme court justices like Justice Kruger. But it’s certainly plausible to think, as Shapiro does, that Judge Srinivasan would be the best pick based on non-identity factors—and that therefore President Biden is doing a disservice to the country by passing him over because of a precommitment to appoint someone from 7% of the population.

Now as I’ve noted, I don’t quite see matters this way. First, I think that race, religion, sex, sexual orientation, and the like are legitimate factors in high-level government appointments even though they aren’t for everyday public employment or education. I don’t think Presidents should feel limited to “objective,” non-identity-based factors in making such appointments.

Second, I think it’s also relevant here that the “objective” factors are really quite subjective. It’s hard to accurately evaluate the quality of people’s legal minds, and especially to predict their likely work product on a nine-member Supreme Court. That doesn’t of course dispose of the question of whether we should consider identity factors; for instance, I don’t think race, religion, or sex should play a role in ordinary government hiring or student admissions, even when qualifications are hard to measure and success is hard to predict. But if I’m right that for high-level positions considering identity factors is permissible, then it’s hard for me to say confidently that considering those factors would yield a materially less qualified candidate, given that the qualifications are so hard to pin down.

Third, the “asterisk” claim strikes me as factually implausible, at least if one views the asterisk as a negative. I think it would be highly plausible in many other contexts; if the next world chess champion, for instance, were selected based on the chess federation’s promise that the next champion would be Hispanic (or even that all Hispanic players would be spotted a pawn), that would surely cheapen his success. (Compare the great Jose Raul Capablanca, who of course has no such asterisk.) But judicial appointments aren’t an objective competition. Having the opportunity to serve the law at that level is a great accomplishment whatever the bases for the appointment; and the way to make it greater is simply to do more with it. Earl Warren, like him or not, is remembered as an especially important Chief Justice because of what he helped do on the Court, and no-one diminishes that on the grounds that he was appointed in part for political reasons stemming from the 1952 election.

But I think this is the sort of discussion we should be having. Perhaps Shapiro is mistaken, and I’m right. Or perhaps he’s right, and I’m mistaken. Or perhaps we’re both mistaken, or perhaps both partly right.

And more importantly, to the extent I’m right (or to the extent President Biden is right), no-one can have any confidence about that unless rival views can be freely aired, both at the outset and in response to disagreements such as this one. If people are fired from law schools for expressing either side (or for an ill-chosen word in a Tweet expressing either side), then we can’t have that confidence. The view that dominates will dominate because of fear and suppression, not because people have actually seen the best arguments on both sides. And I don’t want that even for the view that I happen to think is correct.

Note: Ilya Shapiro and I have worked together on various projects in his time on Cato, including amicus briefs that I’ve written (usually through my Amicus Brief Clinic) with Cato. I consider him a friend, though through our professional lives rather than our social lives.

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