As a rule, appointments to state general district courts do not make national headlines. So the nationwide uproar that ensued last week when the Virginia General Assembly shot down the nomination of Tracy Thorne-Begland because he is gay has the look about it of a watershed moment. The question now is whether the lesson drawn will be narrow or broad.
The narrow lesson seems clear: Rejecting a nominee because of sexual orientation has become scarcely more acceptable than rejecting one because of race. It is clear that the social conservatives who kept Thorne-Begland off the bench did so because of his homosexuality. Yet nearly no one is willing to defend that on its own terms. Even those who opposed Thorne-Begland justified their position with mendacious rationalizations about his ostensible oath-breaking, his activism for gay rights, and so on.
They did not fool anyone. And even the state’s leading conservatives have distanced themselves from the vote. Gov. Bob McDonnell insisted that “these ought to be merit-based selections solely based on a person’s skill, ability, fairness, judicial temperament.” Lt. Gov. Bill Bolling agreed, saying through a spokesman that he “has always believed that judicial appointments should be made on the basis of merit and qualification, and no other consideration.” Former Sen. George Allen and Attorney General Ken Cuccinelli both said the same as well.
That also was the view taken by those on the other side of the aisle. Del. Donald McEachin, who said “the only criteria legislators should apply when selecting judges are that person's ability to fairly and impartially weigh the law. Mr. Thorne-Begland's qualifications for appointment to the bench were unimpeachable, but Republicans cynically voted against his appointment just because he was gay." Del. Joseph Yost agreed: “I don't think that a person's sexual orientation should come into play when someone's a candidate for the bench.” So did The Washington Post, which said “the Republicans’ opposition boiled down to old-fashioned prejudice.” Others expressed similar views.
An editorial headline in the Lynchburg News & Advance summed up the new consensus: “Ability, and Nothing More, Should Be What Matters.”
But when liberals get done congratulating themselves for their moral superiority over the troglodyte right – which is not exactly a high bar to clear – they might hold the Thorne-Begland mirror up to their own side as well. They have just finished insisting on a principle that undercuts the case for one of their most cherished notions: diversity.
Diversity has nothing to do with qualifications, and everything to do with traits. It subordinates merit to race, ethnicity, gender, and sexual orientation. Consider the accusation, frequently heard, that various institutions “lack diversity.” (Recent examples include executive hiring, the HBO show “Girls,” the Obama campaign staff, the Facebook board of directors, Federal Reserve banks’ boards of directors, and so on.) This is not a complaint about ability, judgment, virtue, or any other measure of worth or value. It is simply a census of various traits.
Recall too the assertion, presented as if it were an argument, that the congressional panel on contraception and religious freedom earlier this year – the one that made Sandra Fluke famous – was all-male. “Where are the women?” demanded Rep. Carolyn Maloney. We all know why she and so many others asked that question: the belief that a woman would bring a perspective that the men could not. Now ask yourself what sort of assumptions are embedded in that belief.
Nearly all universities stress the importance of diversity in the student body, and many corporations emphasize the importance of having a diverse workforce. By this they refer not to a wide range of talents, abilities, and perspectives. They refer to a wide range of races, ethnicities, faiths, genders and sexual orientations.
The academic environment seethes with attention to immutable traits. Google “minority scholarships” or “gay scholarships” or “LGBT [lesbian, gay, bisexual, and transgender] resource center” or “queer studies” for a few thousand examples. And while merit plays a role in some cases, it is ancillary to the main focus: what a person is, rather than what he or she has done or can do.
Now there is a distinction to be drawn here. Appointing someone – hiring someone – voting for someone – because he or she is black, or gay, or what have you is not on an equal plane with turning someone down for such a reason. The former is an affirmation, the latter a rejection.
Yet while the motives and effects are different, the underlying act is fundamentally the same. If it is wrong, as McEachin and others quite correctly insist, to oppose someone “just because he is gay,” it also is wrong to support someone just because he is gay. Or black, or a woman. In both cases, the individual is treated not as an individual – but as an indistinguishable unit of a collective that is identified by a particular trait. If traits should not count against someone – if ability and nothing else matters – then they should not count for someone, either.
In her science-fiction classic The Left Hand of Darkness, Ursula K. Le Guin writes, “They say here `all roads lead to Mishnory.' To be sure, if you turn your back on Mishnory and walk away from it, you are still on the Mishnory road. To oppose vulgarity is inevitably to be vulgar. You must go somewhere else; you must have another goal; then you walk a different road.”
We are still on the Mishnory road. Discriminating in favor of members of a certain class may be slightly superior to discriminating against them. But even when the motives are right, treating individuals differently because of their immutable traits is still wrong.