No Better Time Than Right Now to Talk About “Qualified Candidates”
Oh, the Horror!
Right-wing media is afire with angst and anger that the president is about to follow through on his commitment to nominate a Black woman to the Supreme Court. How could he?! What about qualifications?! Is everyone else ineligible for consideration?!
As soon as they finish hyperventilating, let’s see what this really means. And what they really mean.
Any Relevant History Here?
Yeah, just a little bit. Over 300 people have sat on the Court. About 99% of them had a screening criterion – they needed to be white men. That’s not written anywhere, you say? Gee, must just be a 300+ year coincidence.
A couple of presidents did take that on, a few times. No less a roaring liberal than Ronald Reagan let it be known it was past time to have women on the Court. He appointed Sandra Day O’Conner. Not a lot of protest on that one, as I recall. And she did OK, for the most part. At least as well as any man who had been on the court.
When Thurgood Marshall stepped down, the expectation was that a Black judge would be sought as a first choice for that seat. Unfortunately, that turned out to be Clarence Thomas, but I don’t remember hearing a lot of complaints about leading with the expectation of a Black nominee.
What is the Problem?
The right-wing furor over this amounts to no more than two things.
First and foremost, yet another racist dog whistle to its base. Out of all the Black female judges in America, does anyone seriously think a fully qualified candidate would be hard to find? Of course not. No president with any sense of history or judgment would nominate someone who seemed unqualified (George Bush tried that, with Harriet Miers. You saw how that turned out.). Look at the record of the three women most often mentioned as likely Biden candidates. Anyone of them would be winner.
The second reason is that Biden nominates them, so whoever it is must be opposed.
The US Army Taught Me How to Think About This
Quite a few years ago, when I was an active-duty Army officer, I was called up to Washington to sit on a promotion board. Our job was to sort through about 6500 prospective candidates and pick a few hundred to advance. We all felt the pressure to get this done right.
One issue that arose early was a set of guidelines we received about the Army leadership’s desire to ensure several profiles had good representation on the resulting promotion list. The categories were numerous – gender, race, professional branch, etc. We naturally raised the question of should we not pick the best qualified? The feedback we received was invaluable, and I have carried it with me to use in other situations.
Essentially, we were advised (not directed, advised) to use the following model: No one should be promoted who is anything other than fully qualified. These people were going to be senior leaders, with our soldiers’ lives in their hands. We wanted first-rate leaders in every sense. But we also were to recognize that for every promotion made, hundreds more would not be selected.
How to Proceed?
The resulting approach was to assign every single candidate an evaluation, a score. Going from the top rating down, draw a line that equaled the number of promotions to be allowed. Now draw a second line for all those below that first line, but still rated as fully qualified.
Look at the top group; compare that list with the desired representations. If there are representational shortfalls, who on that second list could be added to the first list? How did the resulting list look?
Did we have to go so far down a list that it felt we might be shorting our soldiers of excellent leaders? Were there any representations that could not be fulfilled from within that Fully Qualified list?
If the numbers were not there or the panel felt the exchange was too far a reach, we could advise the Army that all representation goals would not be reached that year. It was our responsibility and our call.
How Did It Go?
In the end, we had no problem making a couple of minor (numerically speaking) adjustments on the lists to meet all desired criteria. This was a talented pool, with no shortage of great candidates.
Did that mean someone missed an opportunity and someone else gained one? Yes, but both were fully qualified; the Army and our soldiers were better served by the adjustment. When selecting people for senior leadership positions – like Supreme Court justices – best qualified can be a very subjective term, and in the end can even be meaningless. Fully qualified is essential. A team that looks like America is equally important.
I think this is basically the Biden approach. So far, one of the great things about this administration has been its appointments, including a lot of federal judges already. They will not screw this up. Stand by for a terrific nominee who will do us all proud.
While We Are Talking About the Court…
Just a short reminder on 4 key points we have raised here before:
- The Court is already packed. Mitch McConnell did that, by blocking a valid nomination for almost a year and rushing in another in a couple of weeks, after voting began. About the most shameful abuse of the constitution I have ever witnessed. Adding about 3 more judges would simply be rebalancing.
- A roulette-like game wherein some presidents get to pick 2-3 judges and others pick none makes no sense, and assures the whole process gets politicized, every time. Go to one pick per four-year term, period. If the number of sitting judges varies a bit as a result, so be it.
- Lifetime appointments make no sense and is not the rule about anywhere else on the planet. Long tenures make sense but something like a maximum 12-16 year term, and/or a mandatory retirement age (80? 85?) is much smarter and takes the pressure of justices on when to retire.
- There is no code of conduct and no outside review of any kind for anything any Supreme Court justice ever does. How does that make sense to anyone? Let’s start with who decides judges should recuse themselves (talking to you, Justice Thomas. Checked in with your wife, lately?).
A Closing Note – A Thank You
My hat is off to Justice Breyer. This likely was not an easy decision for him. He has served the country admirably and clearly could do so longer. But he chose to step down for all the right reasons, not the least of which was consideration of who would follow him onto the Court.
I had the very greatest respect and affection for Justice Ginsberg. She was an American icon. But the handwriting was on the wall, her health long tenuous. She chose to stay longer than good sense would dictate. I miss her greatly.
I especially miss her, knowing that she was replaced with someone who likely will work for the next 40 years to overturn much of what Ginsburg accomplished as a lawyer and as a judge. It did not have to be thus. See items 2, 3 in the section above this one.
Bill Clontz
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Excellent post as always. Thank you. I wonder where consideration of changes to the Supreme Court are being discussed–or are they being discussed by members of Congress. I’d be delighted if any one of the 4 suggestions you list here would go forward.
Thanks, Jeanne. I fear there is little traction in these, post Biden Commission, which was a more timid than I had hoped. Would take a solid majority in Congress to get these done, but we sure need them all.
The fact that the people have no recourse to the actions of a court that can be out of control, as it concerns the law, the constitution and the will of the people is little different from a dictatorship
I certainly get the importance of judicial independence. There is a good reason most places don’t elect judges But surely some genuine standards of conduct and transparency make sense.