I woke up in an alternative universe where John Roberts is considered to have impeccable credentials to be Chief Justice of the United States. Maybe, when you compare him to Harriet Miers, who is being offered pretty forthrightly as someone from outside the conventional pool of nominees. To me, the whole sorry story of the last few Supreme Court nominations, viewed against the backdrop of the right wing assault on affirmative action programs, shows how credentialism gets manipulated when convenient to the detriment of people of color. Let's start by looking at some of the truly stellar conventional legal credentials of the two justices Bill Clinton nominated to the Supreme Court:
Ruth Bader Ginsburg: Professor of Law at Rutgers and Columbia Law Schools. U.S. Circuit Judge on the D.C. Circuit Court of Appeals for 13 years before her elevation to the Supreme Court in 1993.
Stephen G. Breyer: Special Counsel and Chief Counsel to the Senate Judiciary Committee. Professor of Law at Harvard Law School. U.S. Circuit Judge on the First Circuit Court of Appeals for 14 years, including four as Chief Judge of the First Circuit, before his elevation to the Supreme Court in 1994.
Whatever else you may think of Breyer, quite frankly I think he probably was absolutely the most qualified person, according to conventional standards, who could have been nominated to the Supreme Court under Clinton.
Fast forward to 2005, and we are told that Roberts' career as a Reagan and Bush administration official, a Republican party operative and a couple of years on a court of appeals constitutes "impeccable credentials" for a thirty-plus year term in the Chief Justice's seat. Presumably because Roberts did clerk for a Supreme Court Justice himself (yes, that's impressive) and went to Harvard for college and law school (which actually describes a lot of people).
Let's compare Roberts with Clarence Thomas, who quite frankly was thought by no one to have true Supreme Court credentials when he was nominated in 1991 -- his nomination was understood by Republicans and Democrats alike as a transparent attempt to use race as a stick with which to beat Democrats into allowing a hardcore conservative ideologue onto the Court (which worked). Thomas went to Yale Law School, ran the EEOC under Reagan and Bush 41, and was a Court of Appeals judge for about a year before moving up to the Supreme Court. To me that isn't dramatically less impressive than Roberts' resume -- he didn't have the Supreme Court clerk or litigation experience but he did have similar experience as a government attorney and administration official.
That brings us to Harriet Miers, a (white female) graduate of Southern Methodist University School of Law who worked her way up in private practice all the way to being managing partner of a large Dallas corporate firm, was Texas Lottery Commissioner, and held various positions in the current Bush White House. I personally have no problem with having an SMU grad on the Supreme Court; I certainly don't believe that the elite law schools have a monopoly on legal talent. And in theory I have no problem with Sen. Harry Reid's suggestion that the White House go outside the conventional nominee pool in choosing a successor to Justice O'Connor.
But this is where I get pissed off. Let's go back to the Clinton judicial nomination wars, where credentialism was frequently offered by Republicans as an excuse to block or delay judicial nominations. Credentialism was the main justification for Orrin Hatch warning Clinton off of nominating José Cabranes to the Supreme Court. You see, although Judge Cabranes went to Yale Law School and had been a Professor at Rutgers Law School before taking a position as general counsel and a member of the law faculty at Yale, his fifteen years of experience as a judge as of 1994 had all been at the district court level -- and as Hatch explained to Clinton, this lack of credentials would cause a fight between Clinton and Senate Republicans. Clinton ended up sending Cabranes to the Second Circuit Court of Appeals and put Breyer on the Supreme Court, thus opening the door to over a decade of Republican mischief that has taken advantage of what has now become a pathological obsession by mainstream "Hispanic" groups to get that long-overdue "first Hispanic Supreme Court justice" nominated.
Thus, the Clinton years established (or should have established) that significant experience at the Court of Appeals level is now a minimum requirement to be considered for the position of Supreme Court Justice. It's an example of "rising standards" within a credentialist framework -- the same thing, at a higher level, of rising LSATs at the most competitive law schools. The increasing competitiveness of law school admissions has led to people of color being admitted to elite law schools (e.g., the University of Michigan) with LSATs that would have been slam dunks for admission fifteen or twenty years ago, but who now are labeled "unqualified" people who have been given an unfair advantage over "more qualified" white people through "reverse discrimination."
The response to the "reverse discrimination" argument is to point out that credentialist standards are subjective, and that people selecting candidates for jobs, schools, etc. should be entitled to look at the whole person and make a subjective determination that other factors make the candidate a better choice than the person who has "better" qualifications on paper. That's all well and good, and I agree with it, but it enrages me that after Clinton was made to bow at the altar of credentialism, Bush now is making a subjective, anti-credentialist argument to put a Republican crony on the Supreme Court.
And the bitterest irony of all is that as a doctrinaire Texas Republican, Miers most likely will join Roberts in overturning affirmative action laws on the ground that they unfairly discriminate against white people who are "objectively" better qualified.