Limiting Yourself to 7% of the Applicant Pool …

Ilya Shapiro was formerly an employee of the Cato Institute, and is now the executive director at the Georgetown Center for the Constitution. This tweet was sent by Randy Barnett earlier in the week.

Objectively best pick for Biden is Sri Srinivasan, who is solid prog & v smart. Even having the advantage of being an Indian American first Asian American gives identity politics benefits. Unfortunately, we won’t get more black women because she isn’t in the most recent intersectionality hierarchy. You can thank God for little favors.

Biden stated that he only thinks about Biden.[ing]His nominee for the SCOTUS will be black females. An asterisk will remain attached. The Court will take up affirmative actions next term, which is quite fitting.

Although the term “lesser black women” may seem like a poor way to put it, it is clear that this was a badly chosen way to say “less qualified black women.” This strikes me as a valid criticism of Biden’s position. However, it’s one that I disagree with. We should have more discussion about the subject, especially at law schools; I also don’t think that professors or center director should be fired because they express such views, as some people believe should happen to Shapiro.

Biden promised that he would select a Black woman for the seat. He also said that he would appoint one black woman to the Court. This is most likely the only vacant spot that he can fill during the presidential term. According to this, he is only able to represent 7% of the country’s population. That makes it highly unlikely that whoever he picks would “objectively”—I take it Shapiro means based on professional qualifications apart from race and sex—be the best of the progressive picks for the spot.

It is possible, however, that the best qualified candidate would be a woman of color. This is unlikely. It’s also unlikely you will get the best candidate for any job if your first name begins with D. (also about 7%). Indeed, a common argument in favor of nondiscrimination in employment—and in favor of taking affirmative steps to broaden the pool of potential applicants—is that by artificially narrowing the pool of applicants (or even by failing to correct for existing narrowness of the pool) you’d be missing out on some of the best candidates.

What’s more, Shapiro believes—quite plausibly—that in this case the artificial narrowing did indeed fence out the best candidate: Sri Srinivasan, who has served for 8 years as an appellate judge on the D.C. Circuit who is considered by many to be one of the most brilliant appellate and legal judges in America. In that role, I have heard his name often mentioned. This is similar to the way Judge John Roberts was seen when he served on the D.C. Circuit.

Although Judge Srinivasan may be known as an important non-white judge at times, I believe he will still be on the lists of top judges and lawyers regardless of his identity. Although the most prominent black female candidates don’t appear on the sycg list, Justice Leondra Kruger and Judge Ketanji Jackson, they are both well-respected, although I doubt that their achievements are as impressive as Judge Srinivasan’s. (This is no knock on either of them—to be a successful and well-regarded judge, as both of them are, is itself a great accomplishment.)

Of course, judges may be ranked differently by others; Judge Jackson and Justice Kruger could both belong on such lists, regardless of identity. It is possible that there are other factors that affect the ranking. We may also suspect that some legal elites place more emphasis on federal circuit judges, rather than on justices of the state supreme court like Justice Kruger. But it’s certainly plausible to think, as Shapiro does, that Judge Srinivasan would be the best pick based on non-identity factors—and that therefore President Biden is doing a disservice to the country by passing him over because of a precommitment to appoint someone from 7% of the population.

As I have noted, this is not how I see things. I first think that race and religion are all valid considerations for high-ranking government positions, even if they don’t apply to everyday employment or education. When making appointments to high-ranking government officials, I believe Presidents should not be limited to objective and non-identity-based criteria.

Second, it is important that I mention here that even though the objective factors may seem to be very subjective. It is difficult to evaluate people’s legal abilities and to forecast their work output on the nine-member Supreme Court. It doesn’t mean that we shouldn’t consider identity factors. I, for one, don’t believe race, religion or sex should have any role in student admissions or government employment. Even though qualifications can be hard to quantify and successful predictions are difficult to make, it does not end the debate about whether or not to include them. However, if my assumption is correct and identity factors are allowed for top-level positions, I can’t say with confidence that these factors will result in less qualified candidates, as the qualifications are difficult to pinpoint.

The third claim about the “asterisk”, I find to be factually unfounded, at least if you consider the asterisk to be a negative. This would also be plausible in other circumstances. For example, if the next world champion was selected on the basis of the chessfederation’s guarantee that any Hispanic player will be spotted as a Pawn, that would definitely lower his success. Compare Jose Raul Capablanca who, of course, has no such anasterisk. However, judicial appointments can’t be compared objectively. It is an honor to have the chance to work at the highest level of law enforcement. Earl Warren is remembered, whether he likes it or not, as a Chief Justice who helped make the Court a great place to be. No one can diminish that fact that he was elected in 1952 primarily for political reasons.

This is what I believe we need to be discussing. Maybe Shapiro is wrong, but I think he’s right. Maybe he’s correct and I’m wrong. Perhaps we are both wrong, or maybe both partially right.

I think it is more important to note that, even if President Biden is correct, nobody can believe in the fact of my being right. It’s not possible for rival viewpoints to be openly expressed at the start and during disagreements. People who express any side, or use ill-chosen words in tweets expressing that side, will be fired from law school. Fear and suppression will make the dominant view prevail, rather than because they have seen both sides of every argument. Even if I believe the correct view, I do not want it.

Notable: Ilya and I worked together in various Cato projects, which included amicus briefs I wrote (mostly through my Amicus Brief Clinic). He is a friend to me, but more so in our professional and social lives.