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Double Standards and Supreme Court Appointments

[ 0 ] May 11, 2009 |

Two good posts from the XX factor about the anti-Sotomayor smear campaign. First, Bazelon explores the obvious double standards in the criticisms of Sotomayor’s temperament. (See also here.)

Second, Lithwick notes Jeffrey Rosen’s longstanding assumptions about the mediocrity of candidates who aren’t white men:

But more troubling still, he seems to have been arguing that female jurists are by definition “mediocre” for more than a decade! Here’s a piece he did for the New York Times in 1995, arguing that President Clinton’s “single-minded pursuit of diversity, combined with an eagerness to avoid controversy, has kept him from appointing the best available legal minds to the courts.” He then names the many, many white men passed over for federal judgeships and contends that liberal judges lack the intellectual firepower to challenge brilliant conservative jurists because “nearly 60 percent of the Clinton appointments have been minority members and women.” (Read: mediocre.) His single data point to illustrate that mediocrity: Instead of appointing a serious intellectual heavyweight to the Seventh Circuit Court of Appeals (a/k/a “The scholars Court”), Clinton tapped “Diane P. Wood, a little-known professor of antitrust law at the University of Chicago, who is currently an assistant to Deputy Attorney General Anne Bingaman.”

That same mediocre Diane Wood is not only on every shortlist for the Supreme Court today. She’s also widely regarded as one of the finest judges on the bench, to whom other brilliant judges turn for reviews of draft opinions.

What’s striking about this is that not only is Rosen’s judgment spectacularly wrong in retrospect, it doesn’t even make any sense contemporaneously. Generally, if I was trying to demonstrate that a nominee was an intellectual mediocrity, their position at one of the 5 or 7 best law schools in the country isn’t the evidence I’d go with. Compare Wood’s record to that of, say, Antonin Scalia, as described by Tushnet in A Court Divided:

The law schools Scalia taught at were in the top tier of law schools, but he wasn’t one of either school’s superstars. He was at the top of the second rank of law professors in his generation. His specialty was administrative law, not constitutional law. The titles of his major law review articles give some indication of his interests [omitted]…These were good, solid articles about good, solid topics in administrative law, but they didn’t transform even that field.

Wood would seem to have a record that, a minimum, could match up with Scalia. But does anyone think in a million years that Rosen would have attacked Reagan for diluting the intellectual caliber of the D.C. Circuit by putting Scalia on it? Would anybody take such a claim seriously? These questions answer themselves.

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