Sonia Sotomayor, President Obama’s choice to the Supreme Court, is an affirmative action appointment. That is, she was nominated in part because she is a woman and a Hispanic.
Nor is there anything wrong with that. Diversity is important in any high-level government position, and that especially includes judgeships. Diversity improves the receptiveness of the Court to the interests of the common people, and keeps it in touch with middle class America (a trait that Obama somewhat inaccurately called “empathy” but is better encompassed in the old fashioned word wisdom).
Critics of affirmative action play on the misconception that there is an absolute ranking in fitness for any job, and that the employer is bound by law and morality to rank ‘em all up, and then sign #1. If #1 turns the offer down, then the choice moves to #2, and so on until the job is filled. Any attempt, the theory goes, to deviate from the “list” is reverse racism. This argument serves meritocrats quite well, because it also permits them the only chance they ever have to play the race card.
But it’s pure rubbish. If it were true that objective standards infallibly predicted success, the valedictorian of every class would always become the richest or the most successful; perfect SAT score would be the best predictor of Pulitzer prizes; the player with the fastest 40 yard dash time would always be in the Hall of Fame. But it doesn’t work out that way, does it? Albert Einstein finished 5th out of 6 in his college class and in 1904 couldn’t land a teaching job to save his life. Luis Alvarez and William Shockley, Nobel laureates both, were overlooked in grade school by a famous psychologist trying to identify the best and brightest through school testing. Hank Aaron failed to make the cut the first time he tried out for a professional baseball team. A Confederacy of Dunces, a book written by an unknown high school teacher, was rejected by dozens of publishers, before it won the Pulitzer Prize. I could go on forever. The point is, accepted standards only take you so far, and have an unsettling track record of missing not only the very good, but sometimes the very best of the best.
If the Supreme Court requires a one in a million intellect, in a country of 300 million people there are 300 people qualified to take the job. The truth is the number is likely much larger than that; there are probably 5000 Americans who have both the experience and the intellectual ability to do the job. All of them will be graduates of so-called “top” schools, will have years of experience on the bench, will have finished at the top of their class, will have very good SAT and LSAT and whatever other IQ test acronym the discerning heart could desire. Any attempt to further stratify this small group of people and rank them is superfluous hairsplitting.
As a result, we want to look beyond the standard ranking fare to make a good choice. In decision science (a branch of psychology that looks at how people make choices), there is a broad consensus that a committee’s net IQ — that is, its ability to solve a problem or arrive at the correct answer — depends more on the diversity of viewpoints within the group than on the sum of the IQs of its members. (For the basis of this argument I rely on the book The Wisdom of Crowds by James Surowiecki.)
The reason diversity beats total IQ points is that redundant knowledge is not additive. In other words, if two people in a group know the same thing, the group is no better off than if only one person knows it. On the other hand, if two people know two different things, the two separate pieces of information are additive and thus make the group as a whole more knowledgeable.
Suppose, for instance, that you have two groups of 10 people who plan to have Thanksgiving dinner together. One group is made up of a bunch of poultry experts, and each person in the group resolves to outdo the others by bringing in the most delicious turkey. The second group is made up of a bunch of average cooks, each of whom has his own specialty.
When the first group sits down, the table will have 10 turkeys on it. When the second group sits down, there will be one turkey, stuffing, cranberry sauce, dinner rolls — a whole variety of foods. Clearly the second group will have the better meal. Even though they individually are worse cooks, the second group has a greater variety of skills, and thus is able to provide a wider variety of foods, and a more complete and satisfying meal. The first group, while composed of superior cooks, has redundant skills. Two turkeys are not necessarily better than one.
The same applies to the Supreme Court. As long as each member of the Court has the prerequisite competence to serve, what matters most is a diversity of experience and views. Diversity of opinion sparks interesting debate and brings more issues into play. Overlapping experience will lead to more rapid agreement, but a narrower range of discussion. As a U.S. citizen, I prefer members of the Supreme Court to have a wider breadth of opinions, and stronger and more heated debate. Obviously the more angles the nine judges take in looking at a problem, the more likely they are to come to to the right decision.
Surowiecki’s book cites research showing that most committees tend to divide into two opinion camps. If the group is composed of like-thinking individuals, the two camps are much closer together, and not all options are put on the table. For example, throw a group of Republicans in a room and ask for recommendations about health care reform. The group is likely to split into one camp that wants an entirely private system and another that assents to Medicare but otherwise wants minimal government influence. Add a couple of leftists, and suddenly the two camps consist of one group that wants no government at all and another that wants government to run the entire health care system. Which of the two discussions is more likely to be wide-ranging, intellectually challenging, and therefore fruitful?
The interesting thing about Sotomayor, though, is that she passes the diversity test in one way, but fails it in another. Culturally, as a Latina she brings a certain diversity to the Court. But ideologically, she is does not. Sotomayor was educated at Princeton and then went to Yale Law school. Consider the educational history of the justices Sotomayor would be serving with: John Roberts, Harvard, then Harvard Law; John Paul Stevens, University of Chicago, Northwestern Law; Antonin Scalia, Georgetown, Harvard Law; Anthony Kennedy, Stanford, London School of Economics, Harvard Law; outgoing David Souter, Harvard, Oxford, Harvard Law; Clarence Thomas, Holy Cross, Yale Law; Ruth Bader Ginsburg, Cornell, Columbia Law; Steven Beyer, Stanford, Oxford, Harvard Law; Samuel Alito, Princeton, Yale Law.
To summarize, for law school that’s 5 Harvards, 2 Yales, 1 Columbia, 1 Northwestern. If you live in the United States, unless you are a graduate of Yale or Harvard Law, you can pretty much write off being a Supreme Court Justice. The only person on the current Court who did not go to an Ivy League school is Stevens, and he is the one confirmed the longest ago — way back in 1975. So even as the Court has become more diverse culturally and sexually, it remains as educationally — and therefore, I would argue, ideologically — as homogenous as it has ever been.
And when you think about it, what kind of diversity matters most in the Supreme Court? Do we care more about what kind of food the justice sits down to eat after a long day of deliberation, what kind of music she likes, or where she goes to church — or, do we care about how she was schooled? For me, there is no comparison. In legal decision making, schooling beats ethnicity any day.
It is not comforting to me that we seem to be leaving the makeup of the Supreme Court to the admissions committees at the Yale and Harvard Law Schools..
Most Latinas don’t go to Harvard or Yale. Of all the Latinas in America qualified to sit on the Supreme Court, the number that also happened to go to the President’s alma mater has got to be vanishingly small. By deciding to open up the Court to a Latina, President Obama gave himself an opportunity to pick a candidate who was not only diverse by birth and upbringing but also diverse in education. It wouldn’t have been much of an effort to find one, but instead Obama nominated a member of his own alumni club.
I’m not against Sotomayor — in fact, from what I know about her, I suspect she will make a fine justice. But drawing from such a limited group of schools for nominees is wrongheaded, and makes the claim of diversity hollow. For his next choice, I hope the President reconsiders his definition of diversity.