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Clarence Thomas and the “One Most Qualified” Myth

[ 38 ] January 18, 2011 |

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.

Comments (38)

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  1. nolo says:

    Very nice analysis — the Ohio gov’s name, however, is spelled “Kasich.”

    Carry on . . .

  2. Hogan says:

    So his name doesn’t rhyme with “hackish”? Huh.

  3. Greg says:

    Uh, Thomas was nominated by George H.W. Bush, rather than the Moron-in-Chief. My other disagreements with the post lie in the arguement.

  4. Bill Murray says:

    Are there any qualifications for Supreme Court Justice? So

    and is citing yourself twice (and one other case) really the best way to establish that Thomas isn’t Scalia’s sock puppet? It is true that Thomas and Scalia agree on most every case, so maybe Scalia is Thomas’ sock puppet, or they are just two peas in a pod. Thomas’ not asking questions during cases certainly makes hm seem like the GW Bush of the SCOTUS

    • R.Johnston says:

      The problem with calling Thomas Scalia’s sock puppet is that Thomas is pretty clearly the relative intellectual power of the two. Thomas is a lazy and cruel ideological hack with an ungodly victimization/inferiority complex, but Scalia’s just plain dumb as a post and uses bluster to cover for a severely deficient intellect. Thomas is no great legal mind, but unlike Scalia he at least has a legal mind.

      • Aaron says:

        I think you’re addressing, perhaps, intellectual honesty or intellectual consistency? I don’t think anybody familiar with Scalia or his work could reasonably conclude that the man isn’t intelligent. Over the years I’ve heard some of his more vociferous detractors describe him as “the smartest man on the Court”. (And I’ve known a lot of detractors.)

    • Scott Lemieux says:

      1)The cites of “myself” are primarily discussions of the research of others.

      2)Indeed, conservative justices (including Alito and Roberts and Rehnquist) tend to agree with each other. So what? Does anyone argue that Alito is Thomas’s sock puppet? It’s not evidence, especially since there are cases where Scalia and Thomas disagree, and there are documnted cases where the former shifted his position towards the latter’s.

      3)As I said, if you think that the debate-society posturing of Scalia or Breyer at oral argument actually accomplishes anything or changes anybody’s mind, you’re nuts. It’s a silly way of evaluating a justice.

      • chris says:

        Indeed, conservative justices (including Alito and Roberts and Rehnquist) tend to agree with each other. So what? Does anyone argue that Alito is Thomas’s sock puppet?

        Is the supposed Scalia-Thomas link really portrayed any differently than, say, Brennan-Marshall? In both cases the justice with more experience on the Court was presumed to be the senior partner, but that’s because they literally were senior in terms of job experience, something that matters in a lot of coworker relationships.

        Perhaps a little more disturbingly, in both cases the junior partner was black. IIRC Marshall wasn’t on the court long enough to have a mentor-like relationship to anyone else; maybe it will be (or already is, I’m not that close a Court-follower) different for Thomas.

        • Malaclypse says:

          Marshall was on the court 24 years, Thomas 20 years so far.

          • Scott Lemieux says:

            Plus, Scalia was a grizzled veteran of all of five years before Thomas came. Oddly, there don’t seem to be any similar stories about Thomas and Alito, although they vote together more than 80% of the time.

            • Aaron says:

              The history as I understand it is that when Thomas joined the court, Scalia “graciously” gave him a clerk and, subsequently, any number of Supreme Court decisions went from “Justice Scalia dissenting” to “Justices Scalia and Thomas dissenting”, giving some the impression that Scalia and the clerk were having a significant impact on how Thomas was approaching cases.

              As time has passed, it has become apparent that Thomas has an ideology that is in some ways similar to Scalia’s, but at the same time both less nuanced and more internally consistent. It’s pretty easy to find an example of Scalia departing from his claimed devotion to textualism and originalism. Not so easy for Thomas.

              Thomas would probably be viewed more positively by the political left if he were honest, perhaps first with himself, about how he obtained his position. Or approached the subject of how he, a significant beneficiary of affirmative action, can be so adamant that nobody (else) should benefit – how it is that he’s not pulling the ladder up after himself. Even if it were just, “When it comes to getting ahead in America, anything goes; values come a distant second.”

        • hirst says:

          Thurgood Marshall was on the Court for a good long time, but everyone who joined the Court after him was considerably more conservative than he was. I doubt he had much opportunity to be a mentor to a younger Justice.

        • Vox Populi says:

          >In both cases the justice with more experience on the Court was presumed to be the senior partner, but that’s because they literally were senior in terms of job experience, something that matters in a lot of coworker relationships.

          I would argue that there might be more to the Marshall-Brennan alliance than to the Scalia-Thomas. I think in The Brethren, Woodward recounted how towards the end of his tenure, when Marshall was not “there” so much, he would just tell his clerks to sign on to whatever Brennan was doing.

  5. joe from Lowell says:

    Lowell has a large Cambodian population; therefore, the Lowell Police Department makes an effort to hire Cambodian officers, so that 1) the Cambodian community won’t be as likely to view the LPD as an intrusive “them” coming into “our” neighborhoods, but as their own community’s public servants, and 2) there will be some people who speak Cambodian and are otherwise able to understand problems and actions that have some specific connection to Khmer culture.

    In other words, the purpose of promoting representativeness in public office is to provide a connection to, and an understanding of, the community in question, in order to bring relevant facts and perspectives into the governmental decision-making process.

    If there is no such connection, if there is no such understanding, then the appointment of a black face really is just tokenism, something done for show. Whether that show is affirmative (look, black people, and be happy!) or defensive (see, we’re not racists), it’s still not very productive.

    • Scott Lemieux says:

      Excellent points.

    • McKingford says:

      I think this is right (as well as Scott’s general principle that there is no such thing as “single most qualified”).

      And speaking specifically about cabinets…I think it is clear around the world, in both democracies *and* autocracies, that cabinets are molded to reflect and placate various constituencies: women, minority language groups, minority religious groups, visible minorities, etc. In short, cabinet appointments are generally made with political considerations in mind – so that Kasich’s all-white cabinet reflects very poorly on him.

      • Scott Lemieux says:

        Definitely true of Canada, as you know — if there was a Liberal MP from the prairies during a Liberal government, they were pretty much guaranteed a cabinet position. Amazingly, government has continued to function well…

        • Pithlord says:

          The principle at the time of Confederation was the size of the cabinet was dictated by the need to have an Irishman from Quebec. That implied you had to have a Protestant from Quebec as well. And if you had two Anglos, you needed four francophones. And if you had six from Quebec, you needed six from Ontario. And if you had twelve from central Canada, you needed 8 from the Martitimes. So every cabinet had to have 20 ministers.

      • nolo says:

        More precisely, Kasich’s all-white cabinet indicates exactly which constituency he feels he needs to reflect and placate.

    • David Nieporent says:

      Lowell has a large Cambodian population; therefore, the Lowell Police Department makes an effort to hire Cambodian officers, so that 1) the Cambodian community won’t be as likely to view the LPD as an intrusive “them” coming into “our” neighborhoods, but as their own community’s public servants,

      So we need Cambodian cops because the “Cambodian community” is racist?

      and 2) there will be some people who speak Cambodian and are otherwise able to understand problems and actions that have some specific connection to Khmer culture.

      Those are valid concerns, but they’re arguments for hiring someone who speaks Cambodian and knows something about Khmer culture, not for hiring someone whose ethnic check box is Cambodian. (Obviously, it’s likely that the former is almost entirely a subset of the latter. But only a subset; they’re not coterminous groups. And yet affirmative action programs focus on the check box, not the abilities.)

      • Malaclypse says:

        So we need Cambodian cops because the “Cambodian community” is racist?

        I wonder – could there be anything in Cambodian history or culture that might lend itself to making them just a wee bit wary of people with guns, and if so, should we perhaps try and take that wariness into consideration when people with guns interact with them?

  6. CDWard says:

    Thomas should be impeached. He failed to recuse himself from Bush v. Gore when his wife was working for the Bush transition team.

  7. Martin says:

    It’s funny, I remember arguing something a little bit like this with respect to the great Kagan versus Wood debates of last summer on this very forum. The argument isn’t exactly the same, but similar. Given the choice between Wood and Kagan, a lot of liberals seemed to see it as an all-or-nothing choice, that by not picking Wood, Obama *must have chosen* a crony, or an unqualified person, or an establishment bootlick. I argued that since it was more likely that Kagan was quite qualified, the argument HAD to rest on the “missed opportunity” of putting a new liberal lion on the Court, and such arguments often misread the situation, get it wrong, fail to appreciate other forces at work, and so on. I don’t know a lot about Kagan’s actions on the Court since she’s been a member, but I feel like the notion that she was probably very qualified and will probably be a fine justice is likely to be borne out. It’s an obvious position really but it didn’t get a lot of play here last summer.

  8. Anonymous says:

    Glenn Greenwald’s argument was, I believe, that Kagan’s appointment would move the court rightward, as he felt that Kagan was less liberal than Stevens. “Qualified” she does seem to be, but “qualified” is a low bar when you consider that Roberts / Alito / Thomas / Scalia are all qualified. I think that Glenn and other progressives were unhappy about Kagan’s appointment because it represented a missed opportunity to install a reliable liberal vote on issues where the margins are very thin (such as gay marriage, integration, civil rights).

    • Warren Terra says:

      Do you really think she’s not a reliable liberal vote on gay marriage and integration?

      And, sadly, do you really think that Obama, much as I love him in other areas, is going to nominate a pro-Habeas rights absolutist?

      I thought the debate was about her being too conciliatory and not enough of a firebrand/liberal lion/leader figure, not about her turning into a clone of Anthony Kennedy.

    • Joe says:

      Glenn Greenwald et. al. wasn’t really worried about her not voting on the right side of social issues. It was more executive power sort stuff.

      • chris says:

        But given that Glenn dislikes Obama’s record on executive power (not without reason), why would he expect Obama to appoint someone with a restrictive view of executive power in those exact disputed areas?

        Unless he thinks Obama is continuing Bush’s policies only out of fear of appearing wimpy, but would secretly be happy to have the SC tell him he has to stop so that he’s politically off the hook for the decision (which is possible, I guess, but seems a bit overwrought, as a theory).

        • Joe says:

          Stating Kagan is a weak or risky replacement for Stevens as compared to other possible options (his choice among the short listers was Diane Wood) does not mean he was “surprised” at the choice.

          Greenwald has noted he thinks Sotomayor was a good choice, including because we had a better sense beforehand in general how she would rule on a diverse number of issues.

          He has little respect for the ‘eleven dimension chess’ supposed strategy.

        • witless chum says:

          I don’t know about Greenwald, but my thought during the whole thing was that we’d be a lot better off in this country if the left of the Democratic Party could declare an Obama Supreme Court nominee unacceptable in the way the right did to Harriet Myers.

          • PG says:

            The right declared Harriet Miers unacceptable because they thought her unqualified. If you ask a supposed conservative who her favorite justice is/was and she says, “Warren,” she’s a problematic nominee.

    • joe from Lowell says:

      With the court so sharply polarized, the distinction between the two will almost certainly not translate into any meaningful difference when it comes to supporting or opposing decisions.

  9. Joe says:

    This is a good post since a lot of the targeting from the left of Thomas comes off as pretty petty. The oral argument thing, for instance, is largely cosmetic. But, given the image it sends, it is of some concern. And, having heard a few of his questions early on (see Oyez.com), he actually provides an interesting perspective that others at times do not supply. Net loss there.

    • Warren Terra says:

      I agree that the oral argument thing is not a good inditement of his qualities as an arbiter of cases that come before the Court. Scholars say that despite his silence he is making a major contribution, however reprehensible anyone might find it.

      That said, his silence does give an unfortunate impression, on several levels. It appears to indicate that he’s not interested in engaging either with the attorneys or with his fellow Justices, and it makes him a less inspirational figure than he could be for young Black Americans who might like to see him more visibly demonstrating his capacity in his role as the second-most-powerful Black man in America (over the last twenty years on average perhaps the most powerful Black man in America). Now, given his horrible positions I am just as happy to see him failing to be a role model. But it does seem like a role he is uniquely placed to fill, and one he is choosing not to.

      Also, while defenders of his silence make the point that the oral arguments are almost always meaningless or, worse, mere showboating, that is not the explanation Thomas gave for his silence.

      • Joe says:

        He doesn’t suggest they are meaningless, but from some of his comments, it might be said that he thinks too much questioning is showboating that interferes with his ability to listen to each side make their case.

        This doesn’t explain why a few helpful questions would not help in this respect.

  10. Tom Nawrocki says:

    The Thomas example also points up something that makes the Kasich situation sort of funny: Ordinarily, nobody loves making affirmative-action hires more than the Republican Party. In addition to Thomas, no one ever thought Michael Steele would have gotten a second look as RNC chair if he were white. Condi Rice was National Security Advisor when the greatest national security disaster in U.S. history took place, and got promoted as a result.

    When my wife was in grad school for public policy, one of her classmates was a black Republican. As everyone else was struggling to get a summer internship with a lowly city agency, he got a call from a Republican senator’s office, begging him to come work for them.

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