In the Court's Best Interest

"White Men Need Not Apply," blared the headline of Time magazine's The Page. A stock photo of a glum white male appeared below the text. Presumably, the man had been made aware that he was unlikely to be appointed as David Souter's replacement on the Supreme Court bench. Poor guy. White men just can't catch a break sometimes.

But some of the successive commentary made it seem like it was America, and not just its eager white men, who would suffer from this noxious bit of discrimination. After all, if you're not auditioning white males, how do you know you're getting the best candidate? As Emily Miller, a former Tom DeLay staffer, wrote at Politics Daily, "We want to have the smartest, hardest working and best qualified person." And if that person is a white male, then so be it.

It's a coolly meritocratic vision of both the process and the Supreme Court. Somewhere out there sits the biggest brain in the most credentialed and tireless vat. That's the one we want. Or at least, that's the one we say we want. In reality, our approach to Supreme Court nominations is rather different. And no one proves it quite like David Souter.

The problem with the meritocratic vision of the Supreme Court is that there is no agreed-upon definition of a successful justice. For conservatives, Souter is considered a terrible failure. His deficiencies were not, however, shoddy legal thinking but a hidden streak of liberalism. In 1995, National Review decried the "objectionable tendencies in Souter's judging." His primary crimes? Not lacking qualifications or smarts or diligence but "voting to reaffirm Roe and to prohibit prayer at high-school graduation ceremonies." The killing blow came a couple of sentences later: "In cases that split Justices [Clarence] Thomas and [John Paul] Stevens, the right and left poles of the Court, Souter was much more likely to side with Stevens than any other Justice -- including [Bill] Clinton appointees Stephen Breyer and Ruth Bader Ginsburg."

For all the talk of ideal candidates, Supreme Court nominations are generally grubby and instrumental things. Members of both parties live in fear of an Earl Warren or a David Souter: a qualified nominee who unexpectedly pursues an ideologically independent course. They cast about for nominees with enough of a paper trail to assure predictability (no more Souters!) but not enough of a paper trail to guarantee controversy (no more Borks!). They search out young candidates -- the average age in recent years has been 53 -- because the typical length of a justice's tenure has shot from its pre-1970 average of 14.9 years to 25.6 years, and no president wants to risk exerting only two decades of influence on the Court.

In comparison to all this, the case for including gender diversity in the search process is downright high-minded. The United States Supreme Court is 88 percent male and 77 percent white male. And this is actually a fairly diverse moment in the Court's history. As Adam Serwer pointed out, "There have been 110 Justices on the Supreme Court. Of those, two have been women, and two have been black. The other 106 have been white men. That means that around 96 percent of Supreme Court Justices have been white men."

And though few would publicly argue that the Court has a duty to be liberal or conservative (or stacked with young appointees who have very low cholesterol), the institution does have to be considered legitimate. It is responsible for a country that's 51 percent female and whose law graduates are 48 percent female. Its highest profile cases revolve exclusively around things that happen in a woman's body. If we were aware of those facts and were stocking the Court from scratch, there is no doubt that we would strive for more gender balance.

Viewed from that perspective, the situation clarifies considerably. The reason white men are disadvantaged in this nomination process is pretty simple: They are not, right now, what the Court needs. They are not the best candidates for the job. This has never been a search for the right brain in the right vat. But if Obama does add a bit of gender diversity to the Court, he'll be doing something we've not seen in some time: making his choice at least partly on the needs of the institution rather than basing his decision solely on the interests of his party.