The Canard of Judicial Diversity

My ninth grader tried out for the high school soccer team a few weeks back.  And as I watched a practice here and there and wondered who would make the team and who would not, I could not help but think about debates over judicial diversity.

The question is this: how do you choose the eighteen best deserving players to join the team?  Is it the players who best handle the ball?  The ones with the best shot?  Or is it the ones who run fastest, or who hustle on every play?  In a nutshell: who deserves to make the team?

This is not an easy question when talking about putting together a soccer team, and nobody pretends that it is.  Yet somehow we pretend otherwise as soon as we translate this question into debates over racial diversity.  Here is an example, from Curt A. Levey, the executive director of the Committee for Justice:

Diversity is a good thing, but how do you achieve it — by quotas? . . .  Do you achieve it by lowering your standards? Or do you achieve it by removing any discriminatory barriers that might exist and by casting a wide net?  The more you focus on race and gender, . . . the less you’re going to focus on other traditional qualifications — that’s simply the math of it.

This is a canard, plain and simple.  But there is no denying that it is a very effective canard.

What makes a deserving judicial candidate?  This is a very difficult question.  We ought to stop pretending otherwise.

A Word on the "Mystery" of Justice Stevens' Change of Heart on the Death Penalty

In Sunday’s New York Times, Adam Liptak “settles [a] legal mystery:” how to explain Justice Stevens’ vote to reinstate the death penalty in 1976 and his shift in 2008, when he wrote that he believed the death penalty to be unconstitutional?  To the untrained eye, this might appear to be a puzzle indeed.  If the Constitution is but an unchanging legal document, and the Justices’ job is akin to legal archaeology, how to explain any change in legal doctrine, not to mention changes of heart among particular justices? 

Justice Stevens’ answer is uneventful: changes in the composition of the Court, coupled with what he labeled “regrettable judicial activism,” led to a system that is no longer constitutional.   In other words, a process that once could withstand constitutional scrutiny was irretrievably damaged by allowances made by the Court itself.  This is a process, Liptak writes, “shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.”

But clearly this is no mystery.