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Source link: http://archive.mises.org/9894/the-libertarian-defense-of-mediocrity/

The Libertarian Defense of Mediocrity

May 4, 2009 by

Now we’ve all had some fun at the expense of the retiring David Souter. But then Todd Zywicki had to go and hit below the belt:

[I]t is my opinion that Souter’s unpreparedness for the job manifested it in his inability to carry the weight of the Supreme Court robe. He never really seemed to have any coherent idea of what the judge’s proper role was. . . In that sense, he was similar to Sandra Day O’Connor, a potential “accident of history” contender as well because of Reagan’s campaign promise. In my opinion, she too was one of the more mediocre Justice of recent times.

In the end, I don’t think that anyone would champion Souter as a anything other than a mediocre Justice. It is hard to measure how “good” a Justice is–one could imagine many different criteria: smarts, influence, coalition-building skills, etc. No matter what criteria one uses, however, doesn’t it seem to be the consensus that Souter is certainly near the bottom, if not at the bottom, of the current Court? Perhaps this is an unusually talented Court. But still, Souter is by any measure a weak link on the Court most would think.

Playing the mediocrity card is something I’d expect of, well, a mediocre, ex-government academic like Zywicki. Whenever the intelligista compile such “rankings” of officeholders, the tendency is to reward the loud and the statist. Souter was no libertarian, but he did a respectable job of staying out of the Beltway culture for nearly two decades. Zywicki seems to be equating mediocre with low-key.

It’s also curious that Zywicki holds the other eight justices in such higher esteem. This is a fairly homogenous court. As Radley Balko pointed out this morning, “All but one of the current Supreme Court justices went to Harvard or Yale. All were federal appellate judges when they were nominated. And this one seems particularly troubling: Only one-Souter-ever actually presided over a trial.” Maybe that’s what made Souter mediocre – he sullied his hands as a lowly trial judge! John Roberts never did that: He was carried from one elite office to another until he was released from his hermetically-sealed chamber to ascend the chief justice’s throne.

Joking aside, Zywicki’s grumbling about Souter’s “mediocrity” reflects a very dangerous error in thinking that’s common among even libertarian-leaning academics: The notion that charisma and high-sounding credentials are necessary – or even desirable – for state officers. It’s a restatement of the classic “government will work if we just find the right people” fallacy (a fallacy Zywicki has embraced before.) The libertarian objective is to demystify the state and expose the high and mighty as unworthy of their positions. Mediocrity is something that we should embrace, not reject. I don’t want the “best and brightest” working on the Supreme Court. I want them working in the marketplace, helping us to advance liberty against power.


Stephan Kinsella May 4, 2009 at 9:19 pm

Skip, I agree. Having merely “Louisiana” education, I believe I’m eminently disqualified to serve. I hereby volunteer, though my previous self-nomination went nowhere!

Stephan Kinsella May 4, 2009 at 9:37 pm

Skip, more seriously, the problem with these kind of calls for establishment-approved smarts, “competence,” etc.–in addition to the unwarranted assumption that Yale and Harvard and federal jobs means you are smarter than otherwise–is that it implicitly accepts the notion that as long as we put the right people in the positions of power in the state, things will be fine, or at least better. Hence some libertarians are now fawning over Obama’s economic “literacy”; other PC types hypocritically and crypto-racistically sniffed at Clarence Thomas’s “credentials”; and even centralist libertarians think as long as we get the right federal judges in power, we can finally have the utopian centralist “libertarian-rights-enforcing” … federal government of their dreams.

Not only to the worse rise to the top; not only are the statists’ and their hangers’ on criteria for “credentials” perverted and twisted–but even if genuinely good people did get into office, it would not make much different. The state is inherently unjust because it limits itself.

Ralph Fucetola JD May 4, 2009 at 9:42 pm

Justice Souter voted with the anti-constitutional majority in a number of cases that moved the US from a constitutional republic to a nearly fascist state; for example, KELO V. NEW LONDON 545 U.S. 469 (2005) which essentially abolished property rights.

His record on the court is not merely that of a “mediocrity” – his record is that of an “evil mediocrity.”

Gil May 4, 2009 at 11:26 pm

” . . . which essentially abolished property rights.” – R. Fucetola JD

Actually by saying “eminent domain destroys property rights” then you should be blaming the drafters of the Fifth Amendment instead.

geoih May 5, 2009 at 5:43 am

Quote from Gil: “Actually by saying “eminent domain destroys property rights” then you should be blaming the drafters of the Fifth Amendment instead.”

True, but that doesn’t change the interpretation by Souter of that amendment to the extreme, where even leftists throught it went too far.

You can blame a one person for putting a pool next to a nursery, but that doesn’t mean you don’t also blame a second person for standing by while the children drown, especially when that second person is the life guard.

Imhotep May 5, 2009 at 7:47 am

I don’t know much about Souter and the criteria that were applied to coin him as a mediocre Judge. Regardless, I agree with one fact:” We need more Steve Jobs, Bill Gates, Edisons and all sorts of talented entrepreneurs to lead our society through innovative entrepreneurship and ground breaking new discoveries.” Bureaucracy kills talent!

Dick Fox May 5, 2009 at 7:55 am

I would rank the SCOTUS Justices on level of intelligence as follows from lowest to highest.


A couple of observations. My ranking of Stevens so high does not that I agree with him, but his opinions were well thoughtout and documented, though usually wrong.

Others might not rank Thomas so high and Scalia so low but Thomas could say in a few words what Scalia actually meant when he talked. Scalia is more like a shot gun. Thomas comes right to the point. He understands that law and he does not waste time or paper. “Brevity is the soul of wit” after all.

Dick Fox May 5, 2009 at 7:59 am


The fifth amendment calls for both due process and just compensation

“…nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

KELO over-rides both.

Gil May 5, 2009 at 8:32 am

Yes D. Fox the 5th Amendment allows for eminent domain. So the U.S. Constitution doesn’t protect people from eminent domain. There may be qualifications to eminent domain but it’s still there. Maybe it’s akin to habeas corpus – A1S9 makes it clear that it can be suspended if is deemed to be needed. Hence habeas corpus isn’t an automatic right either. Or for that matter in the case of what constitutes ‘sexual harrassment’? It amounts to what a reasonable person would deem so. Yet since most women end up charging men then men should presume they’re going to face a panel of grumpy women as to what constitute what is ‘reasonable’ and what is ‘harrassment’. Can a man complain that women will be less ‘reasonable’ than men and argue that men should only have a panel of men deciding what is ‘reasonable’?

8 May 5, 2009 at 9:03 am

Now’s the time for those liberaltarians to show their worth. They can convince Obama to nominate Janice Rogers Brown.

S.M. Oliva May 5, 2009 at 9:10 am

“Now’s the time for those liberaltarians to show their worth. They can convince Obama to nominate Janice Rogers Brown.”

Brown is no libertarian. As an appeals judge, she supported the FTC’s theft of private property from Whole Foods, going so far as to say the FTC could not be subject to any due process or constitutional constraints.

Michael A. Clem May 6, 2009 at 9:36 am

Regardless of the “quality” of the Supreme Court Justices, I have a bigger problem with the Supreme Court itself: the idea that these justices get to have the ‘final word’ on what constitutes the law of the land. This idea strikes me as being politically conservative, not libertarian. As a libertarian, I don’t think anyone has the final say in legal matters, as the legal system is an ongoing process, not simply someone checking the rule books to see what the proper interpretation of the rules should be.
Instead, I lean more towards a common or customary law system and understanding of the law. It is society that recognizes and enforces law, not any particular group of people forcing their views of law on society. Any judge of worth is going to be applying social standards, not interpreting words on a piece of paper.

christian louboutin June 10, 2010 at 4:25 am

Really good article, thank you for sharing, I will always look at the future, too talented.

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