The Fallacy of Groups

This post will put me in danger of losing my liberal credentials. That notwithstanding, here goes.

President Obama finds himself in the middle of his, if not first, his biggest, campaign versus governance issue.

He gets to nominate a justice to serve on the Supreme Court. These nominations are always big things. FDR failed in his attempt to "pack" the Court. Subsequent Presidents are sometimes disappointed by their choices - Eisenhower and Warren, Nixon and Blackmun, GHW Bush and Souter. Other times, they hit a homerun - Nixon and Burger, Reagan and Scalia, GHW Bush and Thomas, GW Bush and Roberts/Alito.

So what is the cause of their buyer's remorse or delight? They picked their nominees based on a political agenda, trying to "shape" the Court.

Obama's choice is even more complicated. Though Republicans are making noises, none of them expect him to pick someone with whom they would be happy. Most people, left and right, expect the nominee to skew "liberal" and to be a woman, possibly a black or Hispanic woman.
But here's where it gets interesting. It turns out two of the "short list" candidates are openly gay. So now LGBT groups are making noises about his campaign promises and his failure to follow through on them. He's damned if he does and damned if he doesn't.

Not that it will happen; but, here's what Obama should do. He should forget about groups be they black, white, Hispanic, male, female, gay, straight, left, right, majority, minority. He should try to find the smartest, most well-rounded, most experienced, caring, thoughtful, gracious, tolerant lawyer available and make the nomination.

Group politics is for the other two branches of government. The Supreme Court should be peopled (not manned or womaned) with justices who don't have an agenda. When you select based on group representation it more likely that you will not get the best person. Choosing only among men can well mean that you skip a spectacular woman. Choosing only among lesbians would cause you not to consider a gay or straight guy that would otherwise be the best choice based on merit.

And think of the legacy that all presidents seem to care so much about. Twenty years from now the Supreme Court could be populated by justices who are the very best the country has to offer, rather than nine probably pretty good people divided into floating groups of ideologies that drive their analysis and decision making. Don't worry, as I said above, it isn't going to happen.