Tuesday, March 31, 2009

There should be some diversity

I am sure that our pal Simon would agree that there should be some diversity on the Court. And only one man could be that judge.

We all know who he is.
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11 comments:

dr kill said...

I know, I know. It's the guy who saw the front buttons on Jessie' tits. He certainly is brave.

Either him or Plaxico Burris' bloodsucker.

What do I win?

March 31, 2009 at 4:12 PM
Simon said...

I am skeptical of the claim (rhetorical camouflage though it usually is) that there ought to be "diversity" on the court, be it gender/racial/what-have-you diversity or even real diversity. Are we supposed to think, for example, that a prosecutor would be more willing to constrict the exclusionary rule or overrule Booker et liberi because of their experience in the trenches?
And the other argument made - that the court should look like the nation - is frivolous, made either by those camouflaging other motives or ignorant of basic civics and history. The courts aren't there to "represent" me or my viewpoint - I'll take an all-female court if they are all as good as a Diane Sykes or a Diane Wood. Who, by the way, are very different judges who disagree on some very important issues - aptly illustrating the point that this "diversity" claim is hooey.

March 31, 2009 at 4:51 PM
Trooper York said...

Hee, hee.

March 31, 2009 at 4:55 PM
Simon said...

On the other hand, I will say that if President Obama felt that there was an urgent shortfall of English-accented legal conservatives on the bench that he'd like to address, it's important that he realize that his staff have my number and Kozinski has the wrong accent.

March 31, 2009 at 5:04 PM
An Edjamikated Redneck said...

But Simon, can 6 graduates of the same school, with no back ground diversity actually create a diverse opinion?

Obviously the original intent of the framers, well established in the Federalist Papers in paramount, but can be interpreted differently by different backgrounds.

I seriously doubt the a Southern interpretation of the 10th Amaendment (southern born, bred and educated, would match the interpretation of same damned Yankee from Massachuttes, I mean Massacheuttests, I mean Massa-- dag Nab it! Conneticutt, I mean Connecticutt, I mean Conn-- dag nab it! I mean New Jersey!!!

The interpretation of a statses rightist of the 10th would certainly be different than that of a nationalist, even given the same basis to build on?

March 31, 2009 at 6:33 PM
Simon said...

Well, I dispute that the goal of the judicial task is to find a "diverse" answer, or that the actual goal - getting the right answer - is generally served by "diverse" perspectives. (I would also dispute that the drafter's intent is paramount, but that's an argument for later.) Most legal questions have a right answer; even contentious, difficult questions that seem to defy what I think Prof. Solum called the naive right answer thesis, such as the ongoing dispute over how to construe 28 USC § 1453(c)(1) (see Steinman, 'Less' is 'More'? Textualism, Intentionalism, and a Better Solution to the Class Action Fairness Act’s Appellate Deadline Riddle, 92 Iowa L. Rev. 1183 (2007), and compare Spivey v. Vertrue 528 F.3d 982 (7th Cir. 2008) with Estate of Pew v. Cardarelli, 527 F.3d 25 (2d Cir. 2008)), can be characterized as an argument over what the right answer is, not whether the statute does in fact supply an answer. (Section 1453 does, by the way, and Easterbrook's answer in Spivey is the right one.)

If we're looking for the right answer, how is that goal helped by diversity? To be sure, if you have nine judges who are often wrong, it increases the diversity of the court to put one judge on there who is often right, as happened when Rehnquist was put there. But the value of having Rehnquist there wasn't that he brought intellectual diversity to the court, per se, but that he started cranking out opinions that came closer to the right answer, and that made the court more likely to get the right answer. I'm not sure that saying that is to laud diversity, per se, but rather, to laud the right answer. Likewise, think of Dred Scot; I suppose one could argue that with a more diverse membership, the court would have been less blinded by the presuppositions of its slaver-sympathizing members. But that's not right: what we wanted in that case wasn't more diversity, it was fewer wrong judges. Diversity would simply have been one of various ways to decrease the number of wrong judges, and a fairly oblique and inefficient if not in fact scattershot way at that.

I'm not ready to completely dismiss any value to diversity; I believe (although I can't cite examples off the top of my head) that while he vastly overstates how often it happens, Judge Posner is basically correct there really are cases where the legal materials run out before the cases has been decided.* In those situations, people disagree about what to do next. Easterbrook has posited one answer in Statute's Domains and a few other articles: in such situations, he argues, the judiciary have no authority to answer the question. How that plays out in practical terms, however, is not clear to me (Easterbrook's own cases provide no good examples that I'm familiar with.) I suppose that in those situations, diversity could help, I suppose, but I would still be skeptical. In any situation where two reasonable people from the same group being included for "diversity" purposes could disagree on the question (can two reasonable former prosecutors disagree on this? Can two reasonable women disagree on this? Can two reasonable blacks disagree on this? Can two reasonable Catholics disagree on this?), the value of "diversity" in and of itself seems highly dubious to me.


__________________
* Posner has said that if there isn't doubt, why is there an appeal? You might think that was sound, but then, the Seventh Circuit recently decided a case - I forget which - where the amount in contention was less than the filing fee for the appeal, to say nothing of attorneys' fees. Appeals are routinely premised on questions that strike me as having staggeringly obvious answers; see, e.g., two cases before the Supreme Court this term: Knowles v. Mirzayance (is a theory that no one - including the courts below, and not even the Ninth Circuit - thought was right clearly established per 28 USC § 2254?), and today's decision in Rivera v. Illinois (is the trial court's rejection of a peremptory challenge structural error, despite the fact that the court has repeatedly held that states need not provide peremptory challenges at all?).

March 31, 2009 at 7:36 PM
Simon said...

I mean, you may be right, that a southerner has a different understanding of the 10th Amendment than a Northerner. Randy Barnett and I have different understandings of the 9th Amendment, too. That diversity might make for an interesting panel at a debate, but that doesn't mean we should both be appointed to a court for sake of diversity. It means that at least one (and possibly both) of us has the wrong answer. Right? :p

March 31, 2009 at 7:39 PM
Trooper York said...

Holy run on paragraph Batman!

Quick Ron I need a fart joke quick!

March 31, 2009 at 7:56 PM
Trooper York said...

Seriously Simon I have a question for you. If in the interest of diversity, President Obama decided to think outside of the and named a really different character to the Court. So what cartoon character should he name? Popeye because we know his judicial philosphy (I yam what I yam and that's all that I am). Senator Foghorn Leghorn to keep the Southerners and RH Hardin happy? Yogi because he went to Harvard and is smarter than your average bear?

Let me know. I want to start a new series.

March 31, 2009 at 8:01 PM
Simon said...

Has to be Lionel Hutz, doesn't it? Or you could appoint George Jetson and snigger every time hapless counsel confused Justice Jetson and Justice Jackson.

March 31, 2009 at 8:07 PM
Simon said...

If you want to talk about diversity, however, a cartoon character adds nothing; we already have Ralph Wiggum on the court.

March 31, 2009 at 8:19 PM

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