Sotomayor, Obama and the illusion of selecting the best

Studies have shown that most of us are convinced that, like the residents of Lake Wobegon, we’re all a little bit above average, if not superior to virtually everyone. In fact, most who hold this belief about themselves are wrong. Even those who realistically assess their own place on the bell curve of wonderfulness fall prey to the illusion (or delusion) that there’s an absolute best choice for our leaders, from presidents to Supreme Court justices.
The bell curve, we’re all on it and in many places depending what we’re measuring, but where?
Above: for overall intelligence.
Certainly the closer we get to the top (here, the right) of said bell curve in qualifications to hold lofty positions like  president or  Supreme Court justice, the fewer people there are to choose from. In most human endeavors only when we reach the very edge of a kind of statistical event horizon do we find only one or two individuals who have been judged as figures towering over their associates. Since I brought up the realm of physics, Albert Einstein and Stephen Hawking are examples.
I think we’re acculturated to believe there’s really a big difference between the winner and the runner up, as on American Idol and in the Olympics and other sports.
In most competitions there’s no tie for first. American Idol must have a winner for that last dramatic announcement. There’s only one World Series winner. Even in head to head sports, technology has narrowed the winner’s time to 1/100th of a second over number two so an actual tie is almost unheard of.
There’s only one gold medal per event, one Kentucky Derby winner.
Even 4-H children – and their parents – are well aware of the differences between the blue, red and white ribbons, and the coveted purple ribbon. I’ve seen a lot of 4-H pies, pigs and pumpkins and the ribbon winners all look the same to me.
How many parents can be seen at 4-H fairs hugging their red and white ribbon winning sobbing children?
We learn from an early age to adore our winners and reassure our runners up that they shouldn’t feel too badly…. but just to try harder next time, honey.
In far more important human endeavors like being the leader of the free world or wearing the robes of the United States Supreme Court only history tells us who actually turned out to be one of the greatest. 
What history can never tell us is who might have been one of the greatest had they been elected or selected.
It’s a stretch, but can we be absolutely sure that Stephen Douglas wouldn’t have changed his mind about slavery and been as great a president as Lincoln? 
In truth, when it comes to making the choice for a president or Supreme Court justice,  there’s no hindsight and in many cases there is no best of the best.

Addendum 1:

We’re hearing from the conservative and even some liberal opposition to the Sotomayor nomination that while she’s smart, she’s not an intellectual heavyweight. I’ve been around some recognized intellectual heavyweights in the field of psychiatry and believe me, you wouldn’t want to open up to them about your personal problems.
Because Supreme Court judging isn’t like brain surgery…


… and that’s a  good thing because if it was all we’d want was the equivalent of the nine most brilliant neurosurgeons in the country.
If I need a brain operation I don’t care the least whether my surgeon knows or even cares how it feels to be me. I just want the best surgeon. If I’m going to have my life impacted by the decisions of a Supreme Court justice I do want them to have empathy for what it is like being me.


  1. woody188

    I like the theme Hal, but it is the role of Congress to second guess this nomination and either approve it or deny it. Obama is probably wondering why people don’t just be quiet and approve his nominations like he did for George Bush.

    That and it seems like the longer we give Obama the benefit of the doubt the more he moves toward the extremes of the Unitary Executive. I’m surprised all those interviews Cheney does and no one asks him how the Unitary Executive is different from a dictator.

  2. Hal Brown


    I agree it is up to the Congress (just the Senate) to approve or reject nominations to the federal judiciary.

    I doubt Obama wonders why people who have been his adversaries all along are now finding fault with his first Supreme Court nomination. I think he knew what to expect, and made a calculated decision weighing the political pros and cons of each of the finalists in addition to their qualifications.

    I think we have to hold Obama accountable for keeping his promises as best we can here in our small part of the Internet.

    I don’t see him moving towards the unitary executive, far from it. I see him trying to undo the consolidation of power the Bush and Cheney put into the presidency.

    The president as an individual still has incredible power since he’s a one person branch of  our  tripartite government.

  3. bryan mcclellan

    Cuss me if I deserve it,
    ..I’ll be happy with someone who can recognize $hit from $hineola,
    Translation ; an individual who brings grace to the table.

    I’ll be happy to finish second to anyone that wants to play Foos, if they give it their all.

    I’ll be happy to recognize a judge, supreme or lessor, if they hold up the Constitution at their peril!

    Should that not be the question?

  4. bryan mcclellan

    Division has wrest a mighty soul from it’s melting pot of humanity while debt to excess has consumed her manners.

    Whoa, judge that without ones senses or moral compass.

    I’m really curious about the fact that potential candidates cabinets are not set prior to the election, and why not?

    Watch the fools indict and assault the very document within which their liberties are founded.
    Observe them utilize all the tools to escape mans humanity to man and bring such a level of assault to the poetry of life in our time as to revisit past ignorance.

    Recall = Voice.

  5. almandine

    “Supreme Court judging isn’t like brain surgery…” as a basis for accepting rule by a person over rule by the law is quite a concept, Hal.

    Let’s see now… we’re both – you pick the identifier (age, gender, race, ideology, education level, etc.) – similar, so you must be as honest, fair, unbiased, worthy, etc., as I am, so all will be OK+++ if you are my judge.

    What did ever happen to judicial outcomes – in the highest court in the land – based on legal merit?

    The Supremes aren’t a sewing circle… aren’t a 12-step program… aren’t a welfare agency… aren’t supposed to decide cases on who had the worst upbringing… aren’t supposed to consider psychobabble instead of behavior as an adjudicative mechanism… you know???

    It’s the United States Supreme Court for God’s sake.

  6. Warren

    Here is the oath of office taken by a supreme court justice, according to

    According to Title 28, Chapter I, Part 453 of the United States Code, each Supreme Court Justice takes the following oath:

    “I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God.”

    This is interesting. It doesn’t say a darned thing about upholding the law and principles of the Constitution. There is no “support and defend” clause as there is in the oath that congressmen take. It only says that the justice will ‘perform the duties’ described. The thing is, if you read the Constitution, there are no ‘duties’ for a supreme court justice. They don’t even have to show up to vote. There are no guidelines. Policy-making, as this nominee would apparently like to do, is fair game. And there is no constraint to actually uphold the constitution.

    All I can say is WOW.


  7. almandine

    Well Warren, I’d say administering justice without respect to persons, doing equal right, faithfully and impartially discharging and performing all incumbent duties under the Constitution and laws of the US is EXACTLY upholding the law and the Constitution…. whereas deciding cases based on mere empathy or sympathy is NOT. Spin it how you will, BUT making policy thru biased rulings outside legislative or constitutional mandate is not fair game.

  8. RichardKanePA

    Sotmayor has been both a prosecutor, a cooperate lawyer and had various other legal positions that make the National Bar Association extremely pleased.

    Other than that Obama hyped up it being a milestone difference that she was also Hispanic, and born poor and the right wing responded to all the hype.

    No big deal except various interest groups get to spin it for fund-raising purposes.

    I agree with some but not all of the National Lawyers Guilds positions. I could carefully read their reviews of lawyers in the last Pennsylvania election, and vote for most of the judges on their list but use their lawyer’s comments to make a different selection in two cases, even though I had questions about others as well.

    The first time I could ever look at candidates and not just blindly accept the word of someone I don’t totally agree with. Or try to find something specific in different lists.