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The most important thing about the federal judiciary today is that it has been thoroughly corrupted by the judicial right. But there are other important things. And one of them is the capture of the federal judiciary by the elite legal academy. There was a time in our history when it was expected and frequent for elected politicians to be placed on the Supreme Court. Indeed, some of the best and most influential justices came out of the political world.
One product of this elite academic capture of the federal judiciary is the cult of genius that has grown up around it. We’re often told that, while ideology is important, the real priority is to get the best legal mind. This basically comes down to the idea that you need the smartest person, the person out of 350 odd million Americans who is most qualified to be a Supreme Court Justice. This is absurd.
Clearly you want a bright person. You also want someone with what used to be called a “judicial temperament” — someone who won’t make rash decisions, who will tread with deliberation and consider all the implications of a decision. But the idea that justicing requires unique or transcendent candle power is, again, absurd. This isn’t physics. We’re not looking for the one person who will suss out a quantum theory of gravity before time runs out. Judicial reasoning is a wholly synthetic and self-referential body of knowledge. It’s a tool to be used rather than a mountain to be climbed.
Out of the gate, many critics — mostly but not entirely on the right — are saying it’s a bad thing that Joe Biden pledged to nominate a Black woman to the High Court. Some of it is avowedly racist. Ed Whelan, the right-wing judicial politics operative who went full Zillow during the Kavanaugh hearings, has been saying for weeks that it’s a problem that Black women make up a far higher percentage of Biden’s judicial nominees than they do the percentage of lawyers generally.
There are a number of ways to respond to this criticism, each entirely sufficient but each also containing a unique element of the story.
The first and most obvious is that despite the fact that African-American women make up a very small percentage of the nation’s lawyers, there are more than enough highly qualified lawyers and jurists among them to fill multiple Supreme Courts. Whelan’s point seems to be that we should bring back the discredited Immigration Act of 1924 and just apply it to judicial nominees. We really think career GOP operative Bret Kavanaugh ascended to the Court on the basis of some disinterested calculus of merit and intellect?
The second is that since justicing is very literally not rocket science, different life perspectives are at least as important to being a good pick as how many consecutive wins you could rack up on Jeopardy.
But it’s the third that appeals to me most. African-Americans and women are the two foundation stones of the modern Democratic Party. It makes perfect sense that a Democratic President would pledge to put a Black woman on the Court since it’s never happened in almost 250 years of American history. This is not only legitimate and proper. It is deeply rooted in American history. Ideological, ethnic, regional groups mobilize and participate in building political power and they are rewarded in part with representation and participation in the work of governance. It’s part of a centuries old American tradition of what we might call the Cult of Firsts. It’s as American as you can get. And the High Court, all the law professor abracadabra notwithstanding, is part of the machinery of governance.