So the Supreme Court term is over — more on the latest decimation of the Voting Rights Act in a bit — and Stephen Breyer has still not announced his resignation. I suppose he could still do it in the next few days, but given the preemptive defenses of him coming out my guess is that he’s going to be one of the aging elite liberals who is going to put his own vanity over the public interest, despite one of his colleagues recently making the same choice to uphold an imaginary norm to disastrous effect. Yglesias has a good post tying this to broader pathologies in the liberal legal world and the way they’ve co-opted other parts of elite liberalism with their self-justifying bullshit:
One part of the context for our discussion is Justice Stephen Breyer’s perverse refusal to strategically time his retirement, coming on the heels of Justice Ruth Bader Ginsburg’s disastrous refusal to strategically time her retirement. But another related datapoint is the bizarre conduct of the Joe Biden Justice Department under the stewardship of almost-was-a-justice Merrick Garland where the DOJ is still defending Trump in litigation on everything from his shady hotel dealings to his litigation with alleged rape victim E. Jean Carroll.
So looking at Garland, it seems like Biden has unaccountably equipped himself with a guy who’s not a wartime consigliere. But then Breyer isn’t a wartime consigliere either. Nor was Ginsburg. Nor was Obama’s solicitor general Neal Katyal, who went to bat for Neil Gorsuch. Nor is Noah Feldman, who’s in the New Yorker saying Breyer shouldn’t retire.
Yet there’s something very strange about Democrats’ apparent difficulty equipping themselves with smart lawyers who’ll do work for progressive causes. Sen’s research with Adam Bonica, Adam Chilton, and Kyle Rozema shows that lawyers are more progressive than the general public, and law professors are much more progressive than lawyers in general. It should be easy to hire elite lawyers who are committed progressives. But instead, Democrats keep tapping the Washington Generals for key positions.
What my conversation with Sen convinced me of is that these facts are actually related. Because conservative legal elites are scarce, the GOP has crafted a purpose-built legal arm of the conservative movement. But because legal elites tilt left, Democrats instead find themselves captive to and paralyzed by the self-interested nostrums of the legal elite. And I worry that this is happening with “expert” communities writ large.
One great example of this is the way the much of the legal liberal world treated one of the five greatest Supreme Court justices ever prior to her appointment:
I’ll always remember that happenstance led me to a happy hour during the Bush/Obama transition winter featuring a bunch of prominent liberal law professors. I figured I’d ask them who Obama would likely appoint to the Supreme Court. They almost all named someone I’d never heard of, Sonia Sotomayor, so I figured she must be really great if there was such strong consensus.
But no! They were sad about the choice — she was really only being picked because Obama wanted a Hispanic, and she wasn’t at all the best option.
So then I was curious. What issues was she bad on? What was the worry? But they didn’t think she was bad on any issues, they just thought she wasn’t smart enough. One said she didn’t have the kind of “sparkling intellect” one likes to see in a Supreme Court justice. I said I wasn’t sure I did want to see sparkling intellect on the court. I wouldn’t want, like, a total moron. But the most important thing is to understand the stakes, to write clearly, and to make the right decisions. And of course, that’s exactly what Sotomayor does.
If I needed to hire someone to solve difficult math problems, I’d basically want the smartest person I can find. And I think the professors like to think of constitutional law as somehow similar to solving difficult math problems. But it just isn’t. It’s really easy to imagine the smarter of two choices being the worse justice for any number of reasons.
While I agree with the larger points that it’s ridiculous to see constitutional law as a matter of high-level technical expertise and that judgment is more important in a judge than pure intellectual firepower, this is conceding too much in this case. Sotomayor’s alleged intellectual deficiencies were in fact just the product of nakedly elitist and/or racist and/or sexist imaginations; she’s every bit as smart as Breyer or Kagan even though she wasn’t an academic. But Breyer deciding to walk in Ginsburg’s footsteps make more sense when you remember how many of the fancy legal lawyers who slobber over every Federalist Society mediocrity who gets tabbed for a Supreme Court appointment thought Sotomayor wasn’t good enough.