On Earth 2 – Above the LawAbove the Law


Justice Antonin Scalia Gives Talk In Virginia

(Photo by Alex Wong/Getty Images)

President Reagan had a love of the Italian-American community. And so it was natural for him to seek an Italian-American Supreme Court Justice. He found such a person in Judge Antonin Scalia.

On Earth 2, this was not met well. Ilya Shapiro wrote in opposition to the nomination: “has confirmed that identity politics matter to him more than merit.” He goes further to say that his favorite candidate won’t get picked because “it doesn’t fit the latest intersectionality hierarchy so we’ll get lesser Italian-American man.” He added that, if confirmed, Scalia would always have “an asterisk attached” to his name.

Shapiro starts a poll that asks: “Is Ronald Reagan racist and sexist for saying the next Supreme Court nominee will be an Italian-American man?”

The Italian-American community and others are outraged. Shapiro “apologizes” for his “inartful” comments.

Shapiro’s “apology:” “I regret my poor choice of words, which undermined my message that nobody should be discriminated against for his or her skin color … While it’s important that a variety of perspectives and backgrounds be represented in the judiciary, so blatantly using identity politics in choosing Supreme Court justices is discrediting to a vital institution” (emphasis added).

Professor Eugene Volokh rushes to his defense, while clearly saying he does not agree with Shapiro. Yet, he adds gems like this: “To be sure, it’s of course possible that an Italian-American man would be the most qualified candidate. It just isn’t very likely, the same way that you’re unlikely to get the objectively best person for any position if you announced that you would choose someone whose first name starts with D (also apparently about 7% of the population).”  [In reality, Italian-Americans are only about 5% of the population as of the most recent census.]  Still, Volokh posts there is no problem appointing Scalia based upon his Italian-American heritage.

Upon demands for his firing from Italian-American groups, some come to defend Shapiro. They sign a letter that suggests such a firing would infringe on academic freedom. “Indeed, to the extent that people do think it’s proper for a President to promise to fill a position with a member of a particular group, they can only have real confidence in that conclusion if they know that the contrary view can be freely supported and discussed, and has been found unpersuasive on the merits rather than silenced by fear of firing.” They make very clear in their letter that some of the signatories disagree with Shapiro. The letter, signed by prominent law professors, purports to have support “across political spectrum.”

Of course, this thought piece is designed to be a bit silly. After all, we KNOW Reagan nominated Scalia.  We don’t even KNOW who the nomination is going to be from President Biden.

Thought questions:

  1. Would such outrage happen on our current Earth if a president desired to appoint an Italian-American? Why or why not?
  2. Shapiro argued there was a “best candidate,” in his opinion. Was that person the best candidate in 2020? 2018? Why or why not?
  3. One hundred eight out of 114 Justices have been white men. Is the consistent nomination of white men “identity politics”?
  4. Is the “identity politics” to which Shapiro objects only the spoken preannouncement of exclusion of some groups? Is it “identity politics” if groups are systematically excluded over hundreds of years without a word being uttered?
  5. Was this blog post inartful?

LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings hereHe is way funnier on social media, he claims. Please follow him on Twitter (@lawprofblawg). Email him at lawprofblawg@gmail.com.





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