Ilya Shapiro’s Inartful Tweet

Outrage over the outrage is outrageous.

The Daily Beast (“New Georgetown Law Exec Deletes ‘Appalling’ Tweets About Biden SCOTUS Picks“):

Less than a week after being hired to head a high-profile research department at Georgetown Law School, the former head of a conservative D.C. think tank predicted that Joe Biden’s Supreme Court nominee will be a “lesser black woman.” Former Cato Institute director Ilya Shapiro, now executive director of Georgetown’s Center for the Constitution, wrote, “Objectively best pick for Biden is Sri Srinivasan, who is solid prog and v smart. Even has identity politics benefit of being first Asian (Indian) American. But alas doesn’t fit into last intersectionality hierarchy so we’ll get lesser black woman. Thank heaven for small favors?” In a second tweet, Shapiro added, “Because Biden said he’s only consider [sic] black women for SCOTUS, his nominee will always have an asterisk attached. Fitting that the Court takes up affirmative action next term.” He apologized the next day and deleted the tweets, calling them “inartful.” Georgetown Law School Dean William Treanor said in an email that tweets were “demeaning,” “appalling” and “at odds with everything we stand for at Georgetown Law.”

The outrage here is a prestigious academic institution failing to stand up for intellectual freedom, not a couple of inartful tweets. A school condemning a highly accomplished professor and university leader for expressing an opinion well within his field of expertise is extremely problematic. And doing so in a way that implies he’s a bigot is simply beyond the pale.

As noted by several commenters in yesterday’s discussion here of President Biden’s pledge to nominate a Black woman to the Supreme Court, there is no “best pick” for the Supreme Court. While there is some broad consensus as to what qualities one wants in a Justice, Presidents and legal analysts weigh them differently. Ideology/legal philosophy tends to be highly prioritized and, obviously, that means Biden would be choosing from an entirely different pool than his predecessor did even apart from his campaign pledge. Presidents of both parties have also given consideration to demographic representation, touting the First Jewish Justice, the First Black Justice, The First Woman Justice, and the First Hispanic Justice. Shapiro himself clearly thinks that’s fine; he wants Biden to choose The First Asian Justice.

My strong guess is that Shapiro, author of a bestselling book on the history of Supreme Court nominations, agrees with all of that. But that doesn’t mean he’s not allowed to have his own favorite candidate and advocate for him.

Srinivasan is an extraordinarily well-qualified candidate. He’s the chief judge of the DC Circuit and has wide experience before that. He was reportedly in strong consideration by President Obama for the nomination that ultimately went to Merrick Garland only to be thwarted by Senate Republicans. Shapiro expressing the opinion that he’s the “best pick” is perfectly defensible. Ditto his expressing disappointment that Srinivasan isn’t even being considered because Biden has limited the pool to a politically important identity group.

Yes, “lesser black woman” is an extremely regrettable turn of phrase and I strongly suspect Shapiro sincerely regrets it, not just the backlash it generated. But, rather obviously, given the garbled syntax of the tweets, he was using shorthand to fit the brevity of the format. The “lesser” was clearly a comparative to Srinivasan, the “Objectively best pick,” not a declaration that Black women are somehow inferior. Nothing in Shapiro’s history would suggest he thinks that and it’s simply outrageous for his dean to imply otherwise.

UPDATE: Shortly after posting this, I see that Slate legal analyst Mark Joseph Stern is going beyond insinuation and flatly calling Shapiro racist.

The Sotomayor column, written for CNN upon her 2009 nomination, is the type of thing I would very much have agreed with at the time. The essence:

In picking Sonia Sotomayor, President Obama has confirmed that identity politics matter to him more than merit. While Judge Sotomayor exemplifies the American Dream, she would not have even been on the short list if she were not Hispanic.

She is not one of the leading lights of the federal judiciary, and far less qualified for a seat on the Supreme Court than Judges Diane Wood and Merrick Garland or Solicitor General Elena Kagan.

To be sure, Sotomayor has a compelling story: a daughter of working-class Puerto Ricans raised in Bronx public housing projects, diagnosed with diabetes at 8, losing her father at 9, accolades at Princeton and Yale Law, ending up on the federal bench.

Still, in over 10 years on the Second Circuit, she has not issued any important decisions or made a name for herself as a legal scholar or particularly respected jurist. In picking a case to highlight during his introduction of the nominee, President Obama had to go back to her days as a trial judge and a technical ruling that ended the 1994-95 baseball strike.

Moreover, Sotomayor has a mixed reputation among lawyers who have practiced before her, some questioning her abilities as a judicial craftsman, others her erratic temperament, according to a piece by Jeffrey Rosen in The New Republic, which itself has come in for criticism.

Such anecdotal criticism is to be taken with a grain of salt — while Justice Antonin Scalia’s bench-side manner is more vinegar than honey, even his detractors recognize his brilliance — but it does need to be investigated. So, too, do certain statements she made in presentations at Berkeley and Duke, respectively, the former arguing that a Latina necessarily sees the law differently than a white man, the latter suggesting that, at least to some degree, judges make rather than interpret law.

Again, this does not mean that Sotomayor is unqualified to be a judge — or less qualified to be a Supreme Court justice than, say, Harriet Miers. It also does not detract from the history she would make as the first Hispanic Supreme Court nominee — if you don’t count Benjamin Cardozo, a descendant of Portuguese Jews. But a Supreme Court nomination is not a lifetime achievement award, and should not be treated as an opportunity to practice affirmative action.

Again, this is a perfectly defensible position. It’s the position I took with regard to Harriet Miers in real time: that Supreme Court nominations should come from the ranks of the very best legal minds in the country. It’s a position I recanted in October 2020. But it’s certainly a defensible position for a legal scholar to take.

And, as Dan McLaughlin notes in his post on this for NRO, Shapiro’s distaste for identity-based quotas is “consistent with his distaste for the anti-Jewish quotas his parents faced in the Soviet Union.” So, his passion is personal, not just philosophical.

UPDATE II: Going back through the archives, I was actually pretty generous in my reaction to Sotomayor’s nomination. My initial reaction to it, which amusingly cited Shapiro’s reaction, was that she was perfectly qualified and, while liberal enough to spark some heated debate, would likely be easily confirmed. As to the affirmative action bit, I observed,

Certainly, Republican appointees Sandra Day O’Connor and Thomas were appointed largely because of gender and race and ahead of more objectively qualified conservative candidates.  It’s a president’s call to make, with the Senate’s role merely to safeguard against unqualified cronies or the morally unfit.

Stuart Taylor observes, “Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.” While doubtless true, we’ve held white men to different standards than women and minorities on these things for decades.   I’m not thrilled with that fact but it’s not without some justification.   After all, Jeff Foxworthy can say things about rural whites that would be objectionable coming from Chris Rock.

My follow-up, a reaction to a post from Kevin Drum, got into the kabuki nature of these discussions over qualifications and identity politics. Later that summer, I agreed with Julian Sanchez that Sotomayor was “pretty close to the ideal of how affirmative action is supposed to work.”

FILED UNDER: Education, Law and the Courts, Race and Politics, US Politics, , , , , , , , , , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Stormy Dragon says:

    As has been pointed out numerous place, Shapiro made an almost identical tweet about Sotomayor when she was nominated. This wasn’t a momentary slip, but a pattern of disparaging minority candidates based on their race.

    While I realize part of the elite white male code is jumping on the grenade when other elite white males are casually racist, just let Shapiro take his L. Trying to defend him is just going to make you look worse, Dr. Joyner.

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  2. KM says:

    Twitter is inelegant and can cause you to phrase things differently to fit the format. We’ve all had to rearrange things to fit the chara count and still make sense.

    However, “lesser” is a loaded word when speaking of a human being no matter what your intent is; anyone who thinks for a second would get that. “Less qual.” is pretty much the same chara count and would have made his point…. which was that it’s nominating an extremely qualified Black female who he considered to be the non-optimal choice compared to his fav seemingly based on the racial characteristics he thought was important.

    Huh, still inelegant and worthy of outrage. His point was don’t pick the Black lady because she’s Black and a lady, pick this male because he’s Asian (Indian) American to get your lib cred box checked! I’m not sure why he thought he wasn’t gonna get crap for that. His poor phrasing only enhanced his poor point, that even among “idenitity politics” choices, being Black makes you “lesser”.

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  3. wr says:

    His field of expertise? “Black ladies are inferior!”

    Yeah, the university should have gone to the mat for this creep.

    It’s so generous of you to give him every benefit of the doubt. How artfully you decide what he really meant. It’s as if you had no idea he claimed that Obama chose Sotomayor because he prized identity politics over merit. I’m sure he deeply regretted that, too.

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  4. Crusty Dem says:

    To you “lesser black woman” is a regrettable turn of phrase – to many it’s revealing insight into someone’s mindset. Everyone is allowed their own perspective – it’s fine to think your favorite is the best – it’s not fine to degrade an unknown candidate as “lesser”. Using the term “lesser” with race/sex is akin to stating that no black woman is as capable as Srinivasan.

    And to turn things around, the dean is criticizing the tweets, not the person. Intellectual freedom allows Shapiro to say what he wishes, not to say it free of response from the dean. You view this as “regrettable”, many find it far worse.

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  5. MarkedMan says:

    Yes, “lesser black woman” is an extremely regrettable turn of phrase and I strongly suspect Shapiro sincerely regrets it, not just the backlash it generated.

    You are really bending over backwards here to give him the benefit of the doubt. Why?

    He’s a Libertarian, a movement with a long history of the crudest sorts of racism (how many years did the Paul’s publish their hideously racist newsletter without so much as a mild pushback from their fellow libertarians?) The white supremacist movements in the square states and New Hampshire are also tied into the libertarian movement. So libertarians as a group have a long history of the ugliest sorts of racism, and even those not blatantly racist themselves seem to view such opinions as just another topic to be debated, if they give it any notice at all.

    So, sure, it’s possible that Shapiro is not a racist himself and was “inartful”. It’s also possible that he is as racist as he sounded. Why are you going so far out of your way to give him the benefit of the doubt?

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  6. TJ says:

    James, do we really have to pretend that this was Ilya’s first day on twitter? Or the first thing the man’s ever said in public?

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  7. Stormy Dragon says:

    PS – Sotomayor is currently the best justice on SCOTUS. We need 8 more like her. The fact you and Shapiro both thought she was a bad choice just demonstrates neither of you should be judging Supreme Court nominees, because you’re too concerned with “brilliance” and not enough with the role SCOTUS plays in the life of Americans. If Scalia wants to show off his virtuosity, let him go start a blog somewhere. On the court, for all his “brilliance”, he did incalculable damage to this country

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  8. Not the IT Dept. says:

    Good on Georgetown U for having at least some senior staff with standards.

    And “inartful” is an excruciatingly awful description of those tweets. Be better, James.

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  9. Michael Reynolds says:

    I generally deplore the Left’s overreaction to just about everything (overt and nauseating?) but this guy is a grown-up Cato lawyer, he uses words professionally, it’s not five years ago it’s now, and he knows when he’s dog-whistling. Sorry, no pity.

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  10. Stormy Dragon says:

    @Crusty Dem:

    And to turn things around, the dean is criticizing the tweets, not the person. Intellectual freedom allows Shapiro to say what he wishes, not to say it free of response from the dean. You view this as “regrettable”, many find it far worse.

    This is really about maintaining the prerogatives of the guild. 99% of us, of course, have no “intellectual freedom” whatsoever; we can be fired at anytime for even the most anodyne of opinions if one of our superiors finds out and objects. There is a very tiny group of humanity that belong to the “pundit” caste which is allowed to openly speak their mind, and since Joyner is part of that caste, he will reflexively defend it under any circumstances, lest he end up forced to join the rest of us in the real world.

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  11. Michael Reynolds says:

    @Stormy Dragon:
    Where James and many go wrong is in failing to differentiate between IQ (brilliance) and wisdom. I learned the difference personally when I used my ‘brilliance’ to fuck my life up and damage other people in the process. Smart is good but it’s just horsepower. Wise is better.

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  12. James Joyner says:

    @Stormy Dragon: @wr: His argument is consistent: SCOTUS picks should go to the best legal minds that fit the President’s ideological preferences. While I actually supported Sotomayor’s appointment in real time, it’s certainly a reasonable argument. (It’s one I made WRT Harriet Mier, who was white.)

    @Crusty Dem: It’s obvious from context what “lesser” meant. It’s just disengenous to claim it was a racial slur.

    @Stormy Dragon: Your objection to Scalia is his policy preferences, not his intellectual style. Regardless, as noted in the OP, I’ve come to think that nine Scalias is in fact not what we want on the court. But it’s a perfectly common position within the legal academy to think Big Brains, Great CV is the right model.

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  13. Raoul says:

    To say Sotomayor’s qualification were less than Kagan’s is absurd in its face and anyone articulating such has an agenda. And sorry JJ, I’m sure Myer’s would have been a fine justice but her qualifications do not compare with Sotomayor’s. I will add one more thing, Shapiro is against affirmative action unless the nominee is Indian? Not only is it a poor choice of words, but Georgetown should be embarrassed by being associated with this moron more than anything else.

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  14. Daryl and his brother Darryl says:

    It amuses me when members of a demographic that has been shown all manner of favoritism for hundreds and hundreds of years is now up in arms because another demographic may be shown favor.
    Clarence Thomas was specifically chosen to replace Thurgood Marshall. Guess why.
    Reagan specifically chose Sandra Day O’Connor for a reason. Guess why?

    Yes, “lesser black woman” is an extremely regrettable turn of phrase and I strongly suspect Shapiro sincerely regrets it

    Of course he regrets it.
    Bigots hate being called out for their bigotry.

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  15. James Joyner says:

    @Stormy Dragon: I’ve been sharing my opinions online for nearly two decades. Given that I don’t draw a salary for it, I don’t know that I’m part of any “caste.” Intellectual freedom is a core tenet of the American system of higher education, because it’s the only way to ensure ideas that go against the conventional wisdom get aired. What protections Shapiro, who has an administrative role, has from his employer, I don’t know.

    Regardless, Georgetown Law as Georgetown Law should have no opinions on anything but the most anodyne matters, much less express outrage over the ideas expressed by their scholars.

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  16. Andy says:

    Another data point to add to the mountain of evidence that Twitter is a cancerous platform.

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  17. Sleeping Dog says:

    One of the problems on the court is that for at least 50 years there has been a campaign by court watchers to ensure the mythical ‘best jurist’ is nominated. ‘Best jurist’ being measured by some unknowable, constitutional nerd standard. Of course Presidents look at the nomination differently and set a minimum standard legal/judicial qualification and then evaluate on many other measures, including community, background, politics etc. But the pursuit of the mythical has greatly narrowed the field of possible candidates for presidents to choose from.

    If Shapiro feels Srinivasan is so qualified, why didn’t he criticize TFG for Kavanaugh and Barrett? No one on the left, middle and very few on the right felt those nominees were best qualified. If Srinivasan is so qualified, why didn’t Shapiro advocate that TFG nominate him? Obama passed him over for Garland, for political reasons, shouldn’t Shapiro also criticize that?

    You may not want to call Shapiro out as a racists and may feel that he isn’t, but it is hard to deny that Shapiro’s criticism is shaded by a level of disdain for those of other racial and ethnic groups.

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  18. James Joyner says:

    @Raoul:

    To say Sotomayor’s qualification were less than Kagan’s is absurd in its face

    That opinion was almost universal. Kagan clerked for Thurgood Marshall, was Dean of Harvard Law School, and Solicitor General of the United States and was widely considered a brilliant legal mind and top-notch litigator. Sotomayor has considerably more judicial experience but was on the 2nd Circuit, not the more prestigious DC Circuit.

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  19. wr says:

    @James Joyner: “His argument is consistent: SCOTUS picks should go to the best legal minds that fit the President’s ideological preferences. ”

    One might also say that his argument is consistent that minority women have inferior legal minds.

    And the “legal mind” these days seems to mean the ability to distort the constitution to fit a reactionary vision of government, no matter what established laws, precedents and the constitution say. Even if he is sincere — which I doubt far more than you — he’s like a medieval bishop widely adored by his peers for making convincing arguments about the number of angels dancing on a pin while all across the countryside his parishioners are starving to death.

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  20. Cheryl Rofer says:

    @James Joyner: This is correct.

    Regardless, Georgetown Law as Georgetown Law should have no opinions on anything but the most anodyne matters, much less express outrage over the ideas expressed by their scholars.

    If they don’t want racist scholars, they shouldn’t have hired him. There were plenty of earlier indications.

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  21. wr says:

    @James Joyner: “Your objection to Scalia is his policy preferences, not his intellectual style.”

    Policy preferences? Scalia would slap you across the face as he informed you that his own policy preferences have nothing to do with his decisions, which are informed solely by the writ of the constitution. The fact that the two line up precisely in every case is just proof of his legal brilliance.

    Honestly, can’t we give up the ludicrous pretense that the reactionaries on the Supreme Court are doing anything other than imposing their personal preferences on the entire nation? I sure don’t remember Congress voting to overrule Roe, or to outlaw the administrative state…

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  22. Cheryl Rofer says:

    There is no requirement that a Supreme Court Justice be a lawyer. One might argue that life experience is more important than knowledge of legal minutiae, especially since others on the Court are lawyers and each Justice gets four clerks to do the legal work.

    But then one might come up with the idea that people with different life experiences are not “lesser.”

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  23. wr says:

    @James Joyner: ” Intellectual freedom is a core tenet of the American system of higher education, because it’s the only way to ensure ideas that go against the conventional wisdom get aired.”

    I agree entirely, and if the University had moved to punish Shapiro for what he said, we’d probably be in agreement again. (Not that this blog has spent a lot of time complaining about Ron DeSantis trying to fire University of Florida professors for disagreeing with state policy, but you can’t cover everything.)

    But the dean of the law school also has a responsibility to his students, of whom I suspect several are of the “lesser” races. And if he had said nothing while a major, high-profile hire was tweeting that no Black woman could ever be as qualified as some guy to be on the Supreme Court, I suspect there would have been major problems among the student body.

    I mean, if you were of the “lesser” castes, how would you feel about paying 65K a year to go to a school where the most prestigious academic on the payroll says your race is inherently inferior?

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  24. Raoul says:

    JJ: please read Paul Campos’ article on Kagan published in 2010 over at LGM titled Elena Kagan, Barrack Obama and The American Establishment. Kagan may be a brilliant mind but her qualifications were underwhelming to say the least. To be frank, she got where she she got strictly because of her friendship with Larry Summer’s. (Which raises the whole matter of why affirmative action). Now, I’m not saying that wrong per se and I get that that’s how things work but did she have any judicial experience or written more than very few papers- no. Read the article and then tell us who was more qualified.

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  25. @James Joyner:

    SCOTUS picks should go to the best legal minds that fit the President’s ideological preferences.

    The problem is, what does that mean? It isn’t so much that I disagree, but find that people like Shapiro are acting like (and have convinced themselves) that this is an objective standard when any such comparison is utterly subjective.

    And it ignores that there are other important political considerations in any given appointment.

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  26. Mikey says:

    The guy who wrote “Here’s The Libertarian Case For Brett Kavanaugh’s Supreme Court Nomination” calling any Black Supreme Court nominee “lesser” is the very pinnacle of irony.

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  27. Crusty Dem says:

    @James Joyner:

    When being applied to an individual about their work – “lesser” is awful phrasing. When being applied to an entire racial/gender group – “lesser” is ABSOLUTELY a racial slur.

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  28. @James Joyner:

    I’ve been sharing my opinions online for nearly two decades. Given that I don’t draw a salary for it

    What?!!

    I just thought that the check was in the mail!

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  29. MarkedMan says:

    @James Joyner:

    It’s obvious from context what “lesser” meant. It’s just disengenous to claim it was a racial slur.

    Again, you are going way out of your way to give him the benefit of the doubt. Considering his affiliations I think it is obvious that he knew exactly what he was doing and was signaling to his fellow libertarians that he wasn’t afraid to say out loud what they were all discussing in private. He knew he would have to walk it back a bit but would do so in the most BS way possible, with a wink and a nod and a smirk to his fellow racists.

    Or anyway, that’s what seems obvious to me, but I recognize I could be wrong. I really don’t understand why you, on the other hand, are certain that he’s not racist. Do you know this guy on a personal level?

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  30. Modulo Myself says:

    A Supreme Court nomination is like winning a big-time lifetime achievement award. There is not an ‘objectively best winner’ for a lifetime achievement award. Shapiro, I’m sure, has seen plenty of white people win such awards and I wonder how many times he has felt free in public to create an ‘objective’ candidate in order to denigrate the ‘lesser’ person who did win. Probably none.

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  31. MarkedMan says:

    @Steven L. Taylor:

    The problem is, what does that mean? It isn’t so much that I disagree, but find that people like Shapiro are acting like (and have convinced themselves) that this is an objective standard when any such comparison is utterly subjective.

    I think it doesn’t really mean anything. Having a bunch of people from essentially the same background sitting on the court is a profoundly bad idea, regardless of whether they are “brilliant” by some category or another. Dude Kembro linked to an example of Scalia being so completely clueless about the experiences of minority groups and their interactions with police that reading it made me cringe in embarrassment for him. But the reason it was notable was because he was such an arrogant prick while displaying his hopelessly clueless opinions that it became news. But, with the exception of Thomas and possibly Sotomayor do you think there is anyone on the court that has any kind of relevant life experiences on the many issues that affect people of different races and different social classes?

    Simply living as a black woman gives a Justice infinitely more value than if she had authored yet another clever paper about the phony concept of originalism.

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  32. gVOR08 says:

    Inartful? FFS. Carrying over a theme from yesterday, despite being just a guy down at the factory, it seems moderately obvious that being one of the “best legal minds” has devolved into being able to twist the clear intent of the Constitution and clear legislative language to mean whatever said mind wants them to mean. The Federalist Society has twisted fealty to the Constitution into a conspiracy to destroy the ability of the country to govern itself. Unless you think vanilla isn’t a flavor TFG’s three Leonard Leo’s five picks were clearly racially, religiously, and ideologically motivated.

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  33. gVOR08 says:

    @MarkedMan:

    Dude Kembro linked to an example of Scalia being so completely clueless about the experiences of minority groups and their interactions with police that reading it made me cringe in embarrassment for him.

    Frankly, I think we’re being generous to Scalia. What evidence have we that he was being ignorant, not disingenuous? It beggars belief that Scalia didn’t know exactly why the cops might want a drug sniffing dog prone to false positives and that he approved of the practice.

    And referencing back to my @gVOR08:, Scalia was one of the people who astroturfed the Federalist Society into being.

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  34. Modulo Myself says:

    The funny thing is that people always gossip about the real reason somebody won something or gets a nomination. Unless you’ve solved the Riemann Conjecture, what you have done, at a certain level, is matched by everybody else who might get it. So you get gossip–the Nobel committee wanted to give it to a woman, a non-European, etc etc–which might be true, but so what?

    What’s hilarious is that the gossip about libertarians is that they’re fourth-rate hacks with a dumb audience of credulous idiots who need to find supposedly-clever ways to mask racism, greed, and reactionary beliefs. That’s what I think and that’s deep down what most liberals think. It’s all identity politics and cashing in and playing with mediocrities. Wow, you climbed all the way up the libertarian/Koch ladder did you? The people who read Reason think you’re a genius do they? That takes like 1/18th (if that) of the skill to make it as a liberal academic with a modest audience surrounded by other liberal academics with modest audiences.

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  35. Scott F. says:

    Brett Kavanaugh (who all but provably perjured himself in his testimony before the Judiciary Committee) currently sits on the Supreme Court and will forever have the esteem that comes from his appointment. All pretense that SCOTUS picks should go to the best legal minds died when that happened. These debates are now (and forever more) sound and fury signifying nothing.

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  36. Scott says:

    Maybe the assertion that only the “best legal minds” can only be SC justices is just that: an assertion. Justice Breyer was known for his opinion that decisions should consider the practical impact on Americans, not the cold (and easily manipulated) logic of the law. Some of the names bandied about have experience in state courts and as a public defender. Should not actual experience be a factor also?

    Otherwise, why not run the SC as AI, and just have algorithms determine our future.

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  37. Scott F. says:

    @Andy:
    Twitter is indeed cancerous – a tool of destruction like a gun. But, to turn the phrase, “Twitter doesn’t self-expose bigotry, bigots do.”

    4
  38. James Joyner says:

    @Michael Reynolds: As noted in the OP, I’ve evolved my views on this. In retrospect, Harriet Miers would have been a refreshing change of pace.

    @Raoul: He’s opposed to affirmative action, period. He was just highlighting that his preferred pick also checks an identity box.

    @Andy: While I find it quite useful, there’s no doubt that the short-form, fire-and-forget nature of the medium makes it a poor one for discussing controversial topics.

    @Sleeping Dog: In terms of pure credentialism, which is where Shapiro is coming from, Kavanaugh and Barrett are exceedingly qualified.

    @wr: If you’re a credentialist, Sotomayor is a less-than-stellar pick. And Shapiro has no idea who Biden is going to pick—he just holds the opinion that they’re going to be less qualified than the One Objectively Best Pick he has identified. It’s a silly position; it’s not racist.

    @wr: Again, it’s clear to me from context that Shapiro wasn’t asserting that Blacks are inferior.

    @Steven L. Taylor: We’re in agreement. Shapiro clumsily made an argument I ultimately disagree with. I’m just saying that it’s not an inherently racist argument.

    @MarkedMan: I don’t know that I’ve ever met him, although it’s possible that I ran into him at an event or two back in the day. I’ve read his writing off and on for quite a number of years, though. Further, these are familiar arguments and it’s simply pretty obvious from context what he was saying. If he had a history of plainly racist writing—and he’s been incredibly prolific over the years—I seriously doubt Georgetown Law hires him.

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  39. gVOR08 says:

    @Scott:

    Otherwise, why not run the SC as AI, and just have algorithms determine our future.

    Because a decent algorithm would find that the OSHA act authorized the agency to take emergency action against newly emergent workplace hazards; that the fact that the Voting Rights Act preclearance requirement was working is a reason to keep it, not delete it; that the line about militias in the 2A meant something; and even that Bush v Gore should have been settled by actually counting the votes. You can’t expect the Billionaire Boys Club and their Federalist Society drones to submit their fate to an honest AI judge.

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  40. SKI says:

    Yes, “lesser black woman” is an extremely regrettable turn of phrase and I strongly suspect Shapiro sincerely regrets it, not just the backlash it generated. But, rather obviously, given the garbled syntax of the tweets, he was using shorthand to fit the brevity of the format. The “lesser” was clearly a comparative to Srinivasan, the “Objectively best pick,” not a declaration that Black women are somehow inferior.

    This is just factually wrong, James. He wasn’t comparing Srinivasan to a different person and saying he liked one better. He was comparing him to *all* black women. That isn’t a preference, that is prejudice.

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  41. MarkedMan says:

    @James Joyner:

    If he had a history of plainly racist writing

    Someone can be smart enough to avoid plainly racist writings but still mange a steady stream of quasi-deniable dog whistles or “inartful gaffs”, making it clear to other racists what they really mean.

    As an example, Pat Buchanan. Around 1990 I was living oversees and getting my news from shortwave. Owing to a confluence of FCC regulations, the properties of shortwave antenna patterns, and the interests of wealthy hobbyists, a fair number of fringe organizations had shortwave broadcasts and, while scrolling around the various bands, I occasionally came across them and stopped because they were in English. These were profoundly in-group types of broadcasts, and because of that tended towards extremism of political, religious or racial bent. One day I heard a familiar voice and realized it was Pat Buchanan. The host was asking him the most vilely racist questions, using phrases like “mud people” and “monkeys” and questioning whether non-whites were actually human. Buchanan very carefully never repeated any particular slur but he most certainly didn’t challenge the host or give any indication he objected in even the slightest way. For example, when the host brought up the horrors of miscegenation, rather than agree or disagree, Buchanan started discussing horse and cattle breeding, good stock and bad stock, and so forth. As recently as a few years ago I came across a Buchanan column where he was very abstractly using horse or cattle-breeding language. People who didn’t know this was coded, in-group language and wanted to give him the benefit of the doubt might say I was making too big a deal about it. But I heard him all those years ago. I know exactly why he was using that language and the audience it was intended for.

    6
  42. Michael Reynolds says:

    Objectivity is a goal, it’s not something we are actually capable of. All judgments are subjective, by definition – humans are the subjects experiencing objective reality as filtered by our senses, by our experience, by our personal likes and dislikes. Anyone pretending to be perfectly objective is too intellectually immature to be in a position of power.

    6
  43. Dude Kembro says:

    @James Joyner:

    He’s opposed to affirmative action, period.

    Is he? The right tends to be against affirmative action, asterisk wink nod.

    Until confirmed to the 7th Circuit Court of Appeals in 2017, Amy Coney Barrett was a smart, respected professor at a second-tier law school. Had never been a jurist, government prosecutor, defense attorney, solicitor general, attorney general, or legislative counsel.

    Barrett’s thin resumé — by their own here today, gone tomorrow credentualist double standards — should have had conservatives brand Barrett lesser and underqualified. Republicans still gleefully affirmative actioned her onto the Supreme Court because she was known to be reliable rubber stamp for conservative goals. Namely, having a woman author the opinion that brings back forced birth and wire hangers.

    Also, “intellectual” right is now sold out to Donald Trump. Why does anybody take anything they have to say about qualifications and credentials seriously? It’s all so phony.

    9
  44. Gustopher says:

    Again, it’s clear to me from context that Shapiro wasn’t asserting that Blacks are inferior.

    Perhaps just Black women.

    The dude is either a bit racist and misogynist, or he has a history of stepping on rakes and making “inartful” comments that sound racist and misogynistic. Or both.

    I do find the patented James Joyner “we cannot prove the racist intent in this exact instance beyond a shadow of a doubt therefore it is fine” to be tiresome.

    https://www.outsidethebeltway.com/the-ahmaud-arbery-shooting/

    Facebook friends are calling this “murder” and assuming racist intent. But there’s no evidence of which I’m aware, other than that they’re white men from small-town Georgia, that these men are bigots. Much less that they intended to murder Arbery.

    My strong guess, based on the cursory evidence I’ve seen, is that Arbery was indeed an innocent man killed for no good reason. But, absent strong evidence to the contrary, this looks to me like ill-advised vigilantism gone wrong.

    The 64-year-old retired cop missed the action. His untrained, fatass son got scared when a young black man quite understandably tried to wrest his long gun away from him after shots had already been fired and shot him.

    And, yes, there’s a huge racial component to the issue. I have no evidence the McMichaels were particularly racist, much less intended to kill Arbery when they began pursuit. But one suspects they’d have perceived a 26-year-old white man running through their neighborhood dressed similarly as less threatening. And been less likely to give chase, much less use deadly force, given similar circumstances.

    “Racist” is apparently an incredibly high bar for Dr. Joyner, and such an amazingly rare thing that it ought not be assumed unless the actor is wearing Klan robes, and even then, there might be extenuating circumstances. Even when it comes with a caveat that the actions would have been different if not for race.

    What the fuck, sir?

    White dude says something a little racist — it’s probably because the white dude is a little racist. People have all sorts of biases, and they slip out all the time. It’s always the most likely scenario.

    This guy should just man up, own it, and apologize. Even a “while it wasn’t my intent, reading it back… wow, that sounds a bit racist and misogynistic, sorry for writing something really offensive and hurtful” apology would be fine. He’s white, he’s elite, he’ll recover in no time.

    14
  45. DK says:

    @Scott: “The best legal mind” is the one that both agrees with our political views and gets a ‘well qualified’ rating from the ABA. This is true across the political spectrum, no matter how much leg pissing is done by the Shapiros and Sullivans of right wing Twitter.

    It’s all kabuki theater. Who cares about some rando Georgetown guy’s dumb tempest-in-a-teapot tweets? Conservatives will soon get back to really important stuff like anti-CRT race baiting, smearing teachers, and flipping out over Dr. Suess, Big Bird, M&Ms, Minnie Mouse, and woke this woke that.

    The rest of us need to focus on electing Democrats and anti-Trump (lol) Republicans.

    6
  46. Moosebreath says:

    @James Joyner:

    “@Sleeping Dog: In terms of pure credentialism, which is where Shapiro is coming from, Kavanaugh and Barrett are exceedingly qualified.

    @wr: If you’re a credentialist, Sotomayor is a less-than-stellar pick.”

    So Barrett’s less than 3 years on the 7th Circuit makes her “exceedingly qualified”, while Sotomayor’s 10 years on the 2nd Circuit does not. Stop digging, James.

    9
  47. Mikey says:

    @Gustopher: Wow, that Arbery post aged like milk.

    1
  48. KM says:

    @Gustopher:

    This guy should just man up, own it, and apologize. Even a “while it wasn’t my intent, reading it back… wow, that sounds a bit racist and misogynistic, sorry for writing something really offensive and hurtful” apology would be fine.

    THIS. If it was truly an accident and he was sorry, he’d have apologized and taken his lumps. He typed what he typed so own it and what comes with it. Anyone more interested in defending themselves from criticism isn’t truly regretful. They’re more concerned with themselves then with what they did. Never trust someone who says “I’m sorry but…”

    @Moosebreath:

    Stop digging, James.

    Ditto for our host. Shapiro was wrong in even the most generous interpretation of his motivation and verbiage. Why keep trying to diminish it instead of just accepting the man needs to take responsibility for what he said?

    4
  49. Stormy Dragon says:

    @Andy:

    Another data point to add to the mountain of evidence that Twitter is a cancerous platform.

    As long as social media is primarily funded by advertising, there’s a perverse incentive to increase activity by deliberately stirring up trouble between users like a high schooler who goes to tell Amy that Becky told Carol that she thinks Amy is a slut so they can enjoy all the fighting between Amy’s friends and Becky’s friends.

    Twitter is the worst when it basically forces you to choose (at an account level, not a per message level even!) to have everything completely private or everything completely public: the reality is most people shouldn’t want everything they say to be fully public and indeed don’t act like it is, which is a recipe for bad outcomes when the system is built around pushing them into that state.

    A healthier social media would be based around establishing shared spaces and having the conversations within those spaces only visible to people who have specifically been invited in.

    2
  50. Stormy Dragon says:

    @Stormy Dragon:

    people shouldn’t want everything they say to be fully public and indeed don’t act like it is

    Heck, even here most of us act like OTB is a private conversation between the commenter community and not something fully visible to anyone. We’re only able to get away with this because OTB is niche enough to not attract much outside notice.

    2
  51. senyordave says:

    Inartful? Are we starting to run out of adjectives to defend the remarks of white males? Let’s see, we have unfortunate, clumsy, regrettable. Can we think of any others for the next time a white conservative male opens up the race closet?

    3
  52. James Joyner says:

    @SKI:

    He wasn’t comparing Srinivasan to a different person and saying he liked one better. He was comparing him to *all* black women. That isn’t a preference, that is prejudice.

    He’s comparing the “Objectively best pick” to all other picks. If one is the best, all others are by definition lesser.

    1
  53. Blue Galangal says:

    @Steven L. Taylor:

    @James Joyner: SCOTUS picks should go to the best legal minds that fit the President’s ideological preferences.

    The problem is, what does that mean?

    It means whoever the Federalist Society proposed, complete with paid off mortgage.

    1
  54. Stormy Dragon says:

    @James Joyner:

    He’s comparing the “Objectively best pick” to all other picks. If one is the best, all others are by definition lesser.

    If Shapiro started tweeting about “four-sided triangles”, do we have to pretend that’s a meaningful concept as well?

    6
  55. James Joyner says:

    @Moosebreath: But it’s not just length of time of service. Barrett was considered a shining star in conservative legal circles, with a ton of highly-touted law review articles. Even liberal critics conceded that she has a first-rate legal mind. Sotomayor hadn’t checked the same boxes in terms of academic publications, clerkships, etc. She’s well-qualified but nobody thought she was a superstar likely to be nominated to the Supreme Court. Barrett had been shortlisted many times previously.

  56. James Joyner says:

    @Stormy Dragon:

    If Shapiro started tweeting about “four-sided triangles”, do we have to pretend that’s a meaningful concept as well?

    If there was a widely-held belief in elite mathematical circles (no pun intended) that such a thing existed, yes. But, regardless, we would debate or reject it on the merits, not assume that Shapiro secretly hates three-sided triangles.

    1
  57. James Joyner says:

    @Gustopher: @Mikey: The nature of the blogging enterprise is commenting on developing stories. As evidence came in on the story, I changed my mind. What initially seemed to be a vigilantes-gone-too-far story turned out to be something more.

    1
  58. SKI says:

    @James Joyner: Do you really believe that Ilya actually thinks there is an objectively best candidate? Are you that ccredulous?
    Maybe you are…

    From twitter earlier today:

    The conceit that there is one identifiable “best person for the job” is a common one among people who are afraid that some employer might:
    1) notice that a workspace is more white and male than chance would dictate, and
    2) decide to do something about it.

    2
  59. wr says:

    @James Joyner: “Even liberal critics conceded that she has a first-rate legal mind. ”

    Sure. The ones who think they might argue in front of her some day, or the ones who want their Yale-law kids to get a clerkship. It’s kind of the problem with the whole higher legal establishment right in that one sentence.

    7
  60. Gustopher says:

    @James Joyner:

    What initially seemed to be a vigilantes-gone-too-far story turned out to be something more.

    No one other than you and actual white supremacists thought that it wasn’t likely racist. I’m not saying that you’re a white supremacist (you’re not, to the best of my knowledge), but you’re really amazingly limber at bending over backwards to avoid acknowledging racism.

    I will again return your attention to this paragraph:

    And, yes, there’s a huge racial component to the issue. I have no evidence the McMichaels were particularly racist, much less intended to kill Arbery when they began pursuit. But one suspects they’d have perceived a 26-year-old white man running through their neighborhood dressed similarly as less threatening. And been less likely to give chase, much less use deadly force, given similar circumstances.

    See everything hopefully in italics (sentences 2 and 3). What you are describing is colloquially known as “racism,” and yet somehow does not rise to the level of James Joyner Certified Racism.

    The only questions anyone other than you had were “How racist were these people? Neo-Nazi racist, Good Ole Boy Southern racist, or 50% More Racist Than Standard American Racism racist?”

    6
  61. DK says:

    @James Joyner:

    Even liberal critics conceded that she has a first-rate legal mind.

    Huh. I didn’t know Noah Feldman’s nickname in legal circles is Liberal Critics.

    6
  62. DK says:

    @wr:

    It’s kind of the problem with the whole higher legal establishment right in that one sentence.

    “Status quo corporate establishment shortlists Rubber Stamp Handmaiden Du Jour for Supreme Court, says she has ‘first-rate legal mind.’ Doesn’t say same for uppity woman of color diversity hire who threatens status quo. More to follow later, on News That Shocks No One.”

    5
  63. Just nutha says:

    @James Joyner: Even allowing for context, I heard the dog whistle just fine. And I’m also white and grew up working class as well. It may be my long years as a closet bigot make my hearing better even as I slowly go deaf otherwise.

    2
  64. just nutha says:

    Barrett had been shortlisted…

    Were any of those previous times during an administration of a Democratic or credible Republican President who had been elected by with a majority of the popular vote?

    1
  65. James Joyner says:

    @just nutha: We’re decades past the time when a candidate could plausibly be appointed by either party. She was 29 and just barely removed from her clerkship with Scalia when Bush was elected to his first term, so it would have been absurd for her to be on his short list. And Obama served eight years. She was on pretty much every “who a Republican might appoint” list by 2012.As terrible and bizarre as his presidency was, his SCOTUS picks were what one would have expected of any Republican POTUS.

  66. Matt Bernius says:

    After reading the 2009 CNN opinion piece by Shapiro and seeing his listing of Kagan as a better pick than Sotomayor, I was curious to see his reflection on Kagan when she was nominated. Here’s just about the only thing from him that I was able to find via Google:

    Kagan is not the worst choice, but other short-listers would have been better in various ways. While any Obama nominee would have similar views on hot-button issues like abortion and gay rights, Diane Wood would have been great on antitrust and complex commercial litigation, for example, and Merrick Garland would bring a stronger understanding of administrative law.

    Generally, there is no indication that the solicitor general is anything but a standard modern liberal, with all the unfortunate views on the scope of federal power that entails. Another concern is her mediocre performance in her current position. I question the choice of arguments she made in Citizens United and United States v. Stevens, for example — in the first case abandoning the court’s rationale in the precedent she was defending, in the second asserting that protection for speech varies inversely on the speech’s social value. But she may be better suited to a judicial rather than advocacy role.

    I can’t tell whether his feelings on her qualifications sunk less than a year after suggesting her as “better” than Sotomayor or if its more a case of partisanship. Likewise the only thing I could find regarding his position on Garland once he was nominated was an opinion piece in The Federalist suggesting the Republican should not allow any Clinton nominations to go forward if she was elected: https://thefederalist.com/2016/10/26/senate-refuse-confirm-hillary-clintons-judicial-nominees/

    Based on those writings, not to mention reviewing others (including his favorable reception of Justice Coney Barrett, one begins to suspect that Shapiro is as much a Republican as he is a Libertarian (if not more).

    7
  67. Jay L Gischer says:

    @Michael Reynolds:

    Where James and many go wrong is in failing to differentiate between IQ (brilliance) and wisdom. I learned the difference personally when I used my ‘brilliance’ to fuck my life up and damage other people in the process. Smart is good but it’s just horsepower. Wise is better.

    Banging on the “thumbs up” icon just isn’t enough for me to express how much I like this. Especially “smart is good but it’s just horsepower”. Yes. Yes. Yes.

    AND yes.

    You should be a writer or something.

    3
  68. gVOR08 says:

    @Jay L Gischer: One lesson we should all have taken from the last many years is that there are a lot of very high IQ, very well educated people who are functionally stupid. My usual example is Victor Davis Hanson, who seems to have read everything and understood nothing. Lakoff observed that conservatives are able to think through complex issues, but they tend to default to simplistic morality. I think a lot of it is loyalty to careerism over truth or public service. There are also all sorts of hidden agendas and hired guns. And a lot of it is simple laziness.

    3
  69. HarvardLaw92 says:

    @James Joyner:

    But it’s a perfectly common position within the legal academy to think Big Brains, Great CV is the right model.

    And that isn’t necessarily a bad thing. The vast, vast majority of what the justices deal with is the nit picking minutiae of the law, requiring precision and a comprehensive, detailed understanding of its nuances. People (quite naturally) have a tendency to push for nominees that favor their narrow set of policy preferences, but the truth of the matter is that, 95% of the time or better, said justice is not going to be dealing with those nuances. He/she is going to be mired down in the finer points of patent law, or the commercial code, or any other number of exceedingly boring, exceedingly technical, but resoundingly important concepts that have to be addressed by the court. You don’t really want a lesser mind (of any shade) taking on that burden.

    2
  70. Just nutha ignint cracker says:

    @James Joyner: So the answer to my question is “no.” Got it!

  71. James Joyner says:

    @HarvardLaw92: It’s still my default position. But I do think a Sandra Day O’Connor or Earl Warren or two in the mix may have value.

    @Just nutha ignint cracker: Well, yes, but it’s not a great question. She wasn’t ripe during W’s presidency and we wouldn’t expect Obama to nominate even the most brilliant Republican in the history of the planet; it’s not “The West Wing,” sweet though the fantasy may be.

  72. HarvardLaw92 says:

    @James Joyner:

    At heart, both were politicians much more so than they were attorneys. I love the outcomes achieved by the Warren Court while also recognizing that the constitutional reasoning and construction that got them there weren’t always the most tightly reasoned or well crafted pieces of work the court has ever produced. The focus on craftsmanship and reasoning as the basis for where they were taking policy wasn’t always entirely resounding at a time when they really needed to be. In the end though, Warren as Chief was the right personality in the right place at the right time. I’m not entirely sure that having a political mind in that chair, as Chief, is such a bad idea, all things considered.

    O’Connor I honestly just never cared for that much. Huge respect for her intellect, but the politician in her (and that politician’s desire to match the court to where it believed society was “at”, so to speak, on a given issue) gave us Planned Parenthood v. Casey, one of the worst rulings IMO that the court has ever produced. She simply decided, IMO, “this is where the country is on this issue” fashioned a tortured rationale to move precedent to the same place, and set about convincing her colleagues to get on board. It’s been a disaster ever since. Politicians on the court can be a blessing and a curse.

    2
  73. James Joyner says:

    @HarvardLaw92: That’s fair. Some of our best rulings in terms of outcome, with Brown as perhaps the best example, were pretty tortured legally. Griswold, which I fundamentally agree with, is almost comical with its penumbra argument. Roe’s trimester framework, while easily workable, was transparently made up out of whole cloth. The fetal viability standard in Casey at least seems reasonable by comparison.

    1
  74. de stijl says:

    Shapiro writes for a living. Edits his own text.

    Even in a Twitter context you check grammar, spelling, verb form, word choice, flow, etc.

    “Lesser” was chosen deliberately.

    1
  75. HarvardLaw92 says:

    @James Joyner:

    Brown was one of the worst examples, IMO. The outcome was entirely as it should have been, but the reasoning they utilized to get there was specious. Warren ventured off into an examination of harms, etc., when the principle in play was anything but unclear. Venturing forward from the 14th Amendment (and implied in the 5th Amendment), the premise that the law may not treat those under its jurisdiction unequally, or deny to them its equal protection, is quite clear. Warren even had the groundwork laid out for him in a distinct line of cases – Justice Murphy’s dissent disguised as a concurrence in Hirabayashi v. United States, his subsequent dissent in Korematsu v. United States, the courts rulings in Oyama v. California, Hill v. Texas, The California Supreme Court ruling in Sei Fujii v. California, just to name a few.

    The reasoning didn’t need to go any further in its premise than the simple conclusion that distinctions between citizens solely based on a factor like race are odious, by their very nature, to the concept of a free people living under a construct of institutions premised on the doctrine of equality. Such distinctions could not be anything less, and the law employing them – in pursuit of either well intentioned or malevolent ends – violates the mandate of equal protection enshrined in the Constitution. The law may not treat people differently. That’s as complex as it needed to get. From there, it’s a simple walk to “Plessy was wrongly decided, and therefore must be and is overturned. Laws premised on racial distinctions, regardless of their purpose, must by their nature by be considered to be unconstitutional on face.” Brown parties prevail, segregation – anywhere, under any rationale for any purpose, is done. Unconstitutional. You can’t do it.

    Instead, we get this premise of harms laid our by Warren, which brought us to the curious state of affairs where the law can’t treat people differently on the basis of race for bad ends, but we’re somehow fine with it treating them differently for ends that we like, even though both premises equally violate equal protection. Affirmative action is honestly just as offensive to the Constitution as segregation is, but here we are. Such is the danger of shoddy reasoning.

    Griswold speaks for itself, but that’s Justice Douglas for you. Griswold was the culmination of decades of similar reasoning on his part in opinions advancing that viewpoint of the Constitution.

    The problem with Casey is that what should be a definitive standard, to ensure that women situated in different jurisdictions are not subjected to unequal protection of what the court has (in a tortured fashion, agreed) established to be their constitutional right to seek and obtain an abortion. Roe’s trimester framework established that. Definitive lines in the sand which balanced the interests of the woman and the interests of the state in a way that was both consistent and couldn’t be subjected to malicious interpretation. Casey threw all of that out the window and opened the door to a nebulous standard that can essentially mean whatever a creative legislator wants it to mean. All of these limitations and narrowing of access that we’ve seen since 1992 stem from one place – Justice O’Connor originating viability as a standard because she was more interested in the law not offending as a politician than she was in it being just as a jurist.

  76. R.Dave says:

    @de stijl: “Lesser” was chosen deliberately.

    So what? Is “lesser” somehow an off-limits, inherently racist term now? If he had been wordier and said, “But alas doesn’t fit into last intersectionality hierarchy so we’ll get a lesser [jurist solely because Srinivasan doesn’t satisfy the political requirement that Biden nominate a black woman,” would you call that a racist statement? One hopes not. And that wordier statement is exactly the same point that Shapiro’s actual tweet was making.