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Clarence Thomas and the “One Most Qualified” Myth

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The discussion of John Kasich’s lily-white cabinet has brought out two different perspectives about how to think about political appointments.   The conservative position that this doesn’t matter is based on the idea that there must be one “most qualified” person for every spot, and that we should assume that Kasich just chose that individual, who in every case happened to be white.    The (much more plausible) alternative view is that there are likely to be significant numbers of well-qualified people for most positions, so there’s no straightforward tradeoff between merit and representativeness.    Certainly, across the ideological spectrum factors of representativeness — religious, ethnic, geographic, gender, religious — have always been taken into account, and while it’s possible that this can lead to actually “unqualified” appointments (just as appointments that are made for cruder political reasons can), in many cases such factors are a perfectly unobjectionable way of choosing among candidates who are all capable of doing the job.

This general claim has always been true of Supeme Court appointments.     It’s worth noting that if one takes conservative complaints about affirmative action seriously, George H. W. Bush’s appointment of Clarence Thomas was wrong, and if the process had been codified it would be illegal under Roberts Court doctrine.    By all accounts Bush never seriously considered appointing anyone but an African-American to the position, and his farcial statements to the contrary nobody could argue that Thomas was the “most qualified” nominee according to formal qualifications.

While some liberals seem to consider this a failure — perhaps comparable to the appointment of Michael Brown — they’re wrong: Thomas in fact is an excellent example of the fact that the liberal position is right on the merits. He has been a very able justice, and while I agree with little of his constitutional vision it is distinctive and intelligent.    We can argue about whether it’s racist condescension or a lack of sophistication about the Court (as an implicit comment about the importance of oral argument at the Supreme Court level Thomas’s silence is far more plausible than Scalia’s showboating) that causes some liberals to see Thomas as an intellectually weak justice, but it’s not true.   In particular, the lazy, offensive trope that he’s Scalia’s sock puppet is justified neither by the United States Reports nor by insider accounts.

I wouldn’t have voted to confirm Thomas, but then I almost certainly wouldn’t have voted to confirm anybody conservative enough to be nominated in the wake of the Souter nomination.     Thomas was certainly “qualified” in terms of ability to be a Supreme Court justice, and Bush was right not to ignore the obvious point that the representativeness of political institutions matters.

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