On judicial “qualifications”

Over the past few days, there has been an interesting (?) discussion on the Law and Courts Listserv over the nature of judicial qualifications.  Specifically, the issue seems to boil down to whether or not the executive (or judicial nominating commission) should recommend/nominate the “most qualified” individual or a person/slate of people who are all qualified, but also may diversify the bench somehow (demographically, experience, etc.)

It seems to me that anyone arguing for a “most qualified” person needs to first come up with a workable operationalization of that concept.  And I (for one) have yet to see such a concept.  Moreover, even if one were to come up with such an operationalization, it is not clear to me that we ought to be appointing judges in such a manner.  If we think about hiring committees in academia, qualifications are important, but much more important is the “fit” of the candidate.  The same is true is the private sector as well–while one candidate may seemingly rise to the top on paper, how the candidate fites with the mission of the company is just as (if not more) important.  Indeed, this is why candidates interview for jobs and not just simply send in their resumes.

Applying this to the judicial realm, a candidate must first, of course, be qualified.  But, after that threshold has been met, it seems to me that the candidate who is the “best fit” be selected.  When Justice O’Connor retired, she said that Chief Justice Roberts (who was selected to replace her) was perfect in every way, except that he was male.  What she was saying is that he was not the best fit for the job at the time.  Justice O’Connor herself was not the “most qualified” but in the eyes of Reagan, she was the “best fit.”  The same can be said of Thurgood Marshall, Lewis Powell, Clarence Thomas, and countless others:  even if we had a workable operationalization of “best qualified” none of these justices would have risen to the top; however, they were all qualified and they were deemed to be the “best fit.”  Sonia Sotomayor also fits here.

In sum, I wold argue that qualifications are best judged like airplace landings….dichotomously.  One either is qualified or is not, just as an airplane either lands successfully or does not.  Once a candidate has been judged qualified, executives should move on to other things, such as fit.  This is both a normative statement as well as an empirical truth.