A Mockery of Meritocracy

On May 1, Justice David H. Souter ’61 informed President Obama of his intention to resign. As the search for his successor commences, we applaud Souter for his 18 years of service as a member of the Supreme Court’s progressive caucus and encourage Obama to nominate in Souter’s stead a justice of comparable judicial philosophy.

Since he was appointed by President George H.W. Bush in 1990 to replace Justice William Brennan, Souter, to the disappointment of conservatives, has proven to be a reliable liberal vote on the court. In 1992, he voted to uphold Roe v. Wade in Planned Parenthood v. Casey and ruled against prayer in schools in Lee v. Weisman. In 2000, he was among the four justices to side with former Vice President Al Gore ’69 in Bush v. Gore. Although his departure is unlikely to upset the court’s ideological status quo—as it is assumed that Obama will replace him with a similarly liberal justice—Souter also held other judicial notions that his successor ought to exemplify.

Writing in The New Republic, Gordon Silverstein labeled Souter a “judicial conservative,” explaining that, “Judicial conservatives generally have great respect for the law, and for legal decisions that have been made. This is the essence of what is called stare decisis—let the decision stand. Upholding precedent staunches the forces of change—and typically, that generates conservative results. But when the precedent you are upholding is precedent set by the Warren Court, holding back the forces of change means enforcing liberal decisions against radical demands for change from movement conservatives.”

Indeed, Souter’s conservative belief in upholding liberal precedents and stymieing the efforts of conservative activism is a quality Obama would do well to seek in his nominee. Additionally, in light of privacy concerns raised by the growing sophistication of search engines like Google and the perennial issue of net neutrality, we encourage the president to nominate an individual who is technologically proficient and well-versed in cyber law.

However, such discussion of philosophy and qualifications has been notably and disturbingly absent from the public discourse on Souter’s replacement. Instead, the discussion has been largely confined to identity politics.

Following Souter’s announcement, Sonia Sotomayor, an Hispanic federal judge on the U.S. Court of Appeals for the Second Circuit, immediately became the de facto frontrunner to replace him. Other names that have been proffered include Virginia Representative Bobby Scott, an African American being promoted by the Congressional Black Caucus, and former Dean of Stanford Law School Kathleen Sullivan, a lesbian being promoted by the Gay and Lesbian Victory Fund.

While all of these individuals are well-qualified legal minds, their race, gender, and sexual orientation should not be considered among their qualifications.

Explaining her support for Sotomayor, La Raza president Janet Murguia explained, “There are high expectations because of the turnout we saw in the Latino community [in the 2008 election]. I think [picking a Hispanic] would go a long way to helping the Latino community feel they were recognized in terms of that support.”

This mindset of regarding Supreme Court nominations as a means of rewarding a constituency for its political support is highly pernicious and poisons the nomination process. Furthermore, the pursuit of racial and sexual balance has no place in a process that should aspire to select justices based on the relevant criteria of intellect and principles, not the irrelevant criteria of complexion and anatomy.

In an interview for Politico, gay-rights advocate Dixon Osburn stated, “I don’t think [Obama] would shy away from [selecting a gay or lesbian nominee], but first and foremost he’s going to pick someone he thinks has constitutional gravitas.”

Osburn is correct; while it would indeed be ideal to have a sexually and racially balanced court, concern for diversity should not compromise the ideal of meritocracy.