Osler's Razor

I loved Eliot Spitzer's comment in that Post article: "I didn't go out with her [at Princeton] but I'm sure other guys did."

It's indicative of the level of conversation that comes out when people are speculating about whether this woman is gay or not. I find that speculation highly offensive and hurtful (as a non-married 48-year-old woman with no children). I hope Kagan has a thicker skin than I do about that issue.

If she brings it up herself that she's gay, then maybe it's an issue worth talking about. But to assume it just by looking at her? Come on. Nobody ever publicly questioned whether lifelong bachelor David Souter was gay.
 

So her religion is relevant to the debate but not her sexual orientation? Where do you draw the line? What about the fact that there are no moms on the supreme court? What about the need for diversity of education, ethnicity, socio-economic status, talking points? Not sure where the relevance line is drawn. Seems like pundits pick their issues and interject them for media exposure.
 

Michael--

I think that diversity of education, ethnicity, socio-economic status, and religion should all be considered. The problem with sexual orientation is that it is such a culture-war flashpoint that we don't seem to get straight answers (so to speak).

Of course people pick issues to care about. Is there something surprising about that? I am happy to talk to the media on those subjects I really care about (mostly relating to sentencing) because if you really want to create social change, you need to interact with the media or no one hears you. There is nothing evil in that.

If I write a law review article on an important topic (which I do), I'm lucky if 200 people read it. If I talk to USA Today, hundreds of thousands read it. The former has much more depth than the latter, of course, so both are important.

If you want to change the world, can you really do so silently? And can you do so without "picking your issues?"
 

I don't know what the objectives of all the pundits are when they talk about their issues, it was more of a comment that that is what they invariably do whenever there is a supreme court opening.

And I don't know that sexual orientation is such a "flashpoint" that we are incapable of reasoned debate on the issue. With decisions like Lawrence v. Texas, sexual orientation is just as legit as any other area of inquiry.

If pundits want to create social change by giving interviews on TV, then that's great. Twitter and facebook work well too. I agree that writing law review articles does not create social change, but it does advance legal scholarship. I think your work on sentencing issues in this area has been great.
 

It's truly amazing, the power of the press to start a conversation on an issue. The hard part is getting to the point where your voice is called upon to give opinions. Most people who want to get an issue out in the open never get to that point, and it's terrific that the Prof is now one of the major voices the media is calling upon--whether you agree with him or not.


And I think all kinds of diversity in Supremem Court justices are worth talking about. It's interesting to observe, over time, which issues come up as the ones people care most about. With Sotomayor, it wasn't religion (she's Catholic, too) but ethnicity and gender.

With only nine, though, it's going to be difficult to achieve all types of diversity, all the time. Diversity on the court, and which types may be more important, is fascinating to discuss, in part because for those of us who are not lawyers, the Supreme Court seems like the most mysterious and revered of all US jobs (to me, anyway). We don't know who we need for it.
 

Don't we just want the nine smartest, most capable legal minds on the court?

I'm serious, would you rather have a court comprised of nine african-american women, all of whom went to Texas Tech Law School, all of whom grew up in Longview, Texas in middle class households, all of whom are lesbians, and all of whom are Baptist, BUT all of whom are generally recognized as the top constitutional and legal scholars in our country with the most experience and expertise to be supreme court justices, or would you want a court with less qualified judges, but judges that are also diverse in race, gender, religion, sexual orientation, favorite sports team, educational background, class, etc.?

I just don't see why diversity for diversity's sake is a virtue.
 

I would be in favor of the former of your two options, but only if the Supreme Court agreed to televise all oral arguments. Alternatively, I think Mike Leach should be on the Supreme Court. I think he's a lawyer and has some free time. He would be guaranteed not to hire law clerks from Yale or Harvard b/c of the entitlement issues, thus enhancing diversity, and we would see foot notes involving pirate history as a guide for interpreting foreign maritime statutes, which I am generally in favor of.
 

The problem, RRL, is that there will never be a consensus as to who is "generally recognized as the top constitutional and legal scholars in our country with the most experience and expertise to be supreme court justices." Just won't happen-- there really are not objective criteria to measure that.

Given that inability to measure quality to that degree, we do need some diversity on the court so that the outcome will be the result of collective wisdom.

Following your logic, if quality could be measured that way, we would could just have one Justice, and it would be the "top" legal mind in the country. That's ridiculous, isn't it? So, we need deliberation and discussion to get to a collective wisdom, and that creates the need for a diversity of backgrounds.
 

I agree with the Prof -- a diversity of backgrounds is good, but we also need a diversity of educational perspectives.

Imagine if instead of 9 we had thirteen, one for each federal circuit and one "at large." The President would still nominate each of the 13, but to be drawn from a circuit, one would have had to go to a law school in the territory governed by that circuit.

Just a kooky idea I had the other day.
 

Just a thought, but shouldn't we be as concerned about the type of clerks the Justice's employ? The best, the brightest, diverse backgrounds and hopefully from a variety of law schools?
 

Christine--

Very true. Traditionally, though, this is entirely at the discretion of the Justices.