Wednesday, May 27, 2009

Should Judicial Conservatives Cheer the Sotomayor Pick?

Professor Tom Smith says yes:

If you are, oh, a professional sports team, or an academic bowl team, and your opponents choose some of their team members on grounds other than how good they are at the sport, or how much academic trivia they know, that helps you. So it would seem Obama is choosing to get some relatively short term political gain from his appointment, at the cost of getting more long term influence on the law by nominating some intellectual giant of the left. I mean, should we be happy or sad that Obama did not nominate Cass Sunstein (the Middlesex School, Harvard, Harvard varsity squash, Harvard Lampoon, Harvard Law) to the Court? Maybe that's not a good example -- take someone as smart as Cass but more unambiguously on the left: no one comes immediately to mind, there being some tension between these qualities, but you see what I mean.

So I say, let our young President have his nomination to the Court. Is the legal left better or worse off having Justice Alito on the Court instead of Justice (pardon me while I shudder and apologize for not being a nicer person) Miers? It seems to me we are better off and they worse for having somebody of Alito's calibre on the Court. Just to state my obvious point yet again, the reason why it's a bad idea in many settings to choose somebody for a job partly on the basis of their race, sex, or other actually irrelevant qualities, is that you are not maximizing what you should be maximizing, which in the case of SCOTUS is presumably some combination of intelligence, knowledge of the law, fair minded temperament, ability to work nicely with others, and willingness to apply those large talents to the frequently trivial and incredibly boring issues to which the Court must address itself, such as whether a military officer can wear a yarmulke under his cap.

Entire insightful post here.