It probably seems as though I’ve been picking on Slate law columnist Dahlia Lithwick lately (see my “Bush Is Too Dumb to Be President, but Roberts Is Too Smart to Be Chief Justice,” Sept. 8)–but oh, why not? Lithwick is the Maureen Dowd of legal writers, passing off cheap shots–and often lame and tired ones at that–as piercing social commentary:

Here’s a sample of her wit (the subject is the speculation that George W. Bush will appoint a woman or minority-group member to fill the sudden second Supreme Court vacancy):

“Now that it seems he’s a rich white guy who only cares about rich white guys, putting another rich white guy on the highest court in the land looks a little dubious.”

Har-de-har-har. (And I won’t even go into the irony of an obviously well-compensated journalist like Lithwick taking potshots at the “rich.”)

She continues:

“The early money was on Janice Rogers Brown; she who won’t be happy until courts are once more adjudicating witch trials and drive-by tar-and-featherings. But on Tuesday, Bush made it clear in his inimitable Bush: joking-or-stupid? fashion that Alberto Gonzales is still up at the top of his dance card. It’s clear that Laura Bush and Sandra Day O’Connor are hoping for a girl-justice, and it seems the rest of the country agrees. Most of us should have figured out long ago that Priscilla Owen will be no ‘better’ for women than Clarence Thomas has been for African-Americans. So, why is this still an issue?”

Normally, I would applaud any commentator, especially a liberal such as Lithwick, who eschewed the mindless quest for racial and gender “diversity”–token blacks, Hispanics, women, and so forth–that is now de rigeur for appointments to high office. Not only is it demeaning to members of those groups because it insinuates they were selected for advancement on account of their skin color or sex, not their talent or achievements, but it’s subject to the whims of diversity fashion as they come and go. As Lithwick herself notes:   

“For instance, there used to be terrific concern about geographic diversity on the court–a New York seat, or certain southern seats. There was also once great urgency for religious diversity on the court. But almost nobody noticed the glut of southwestern jurists on the bench during Rehnquist’s reign. And no one seems bothered that where there was once a begrudging Jewish seat, there are now two. As regional and religious identity became less important in the country, the need for them to be proportionally reflected on the court was diminished. As race and gender have come to define us, that’s what we need on the court.

“So, what we want on the court isn’t exactly diversity. It’s diversity reflecting those issues about which we are most anxious right now. It suggests that just because we are worried about race and gender, minority and women judges will worry, too. We don’t care if the Pacific Northwest is unrepresented on the high court, but we freak out when we ‘lose’ a woman’s seat.”

Ah, well and good–except that what Lithwick is really worried about isn’t the silliness of affirmative action. It’s that the affirmative-action choices of the Bush administration–the Janice Browns and Alberto Gonzalezes–are likely not to conform to her expectations of how women and Hispanics are supposed to think and vote. In Lithwick’s view, all blacks are supposed to support racial preferences, or they’re traitors to their people like Clarence Thomas. All women, presumably, are supposed to be soft on crime but hard on opponents of abortion. All Hispanics are supposed to harbor bitter grievances over the loss of the Mexican-American War. Simply put, Lithwick expects blacks, Hispanics, and women to conform to ethnic and gender stereotypes. And when they don’t–when they dare to dissent from the identity politics pushed by their self-proclaimed spokesmen–they’re “no better” for women, Hispanics, or whomever than Thomas is supposed to be for African-Americans.

So naturally Lithwick doesn’t want to see Priscilla Owen filling Sandra Day O’Connor’s seat on the high court. Naturally she’s become a sudden convert to the anti-affirmative action stance usually advocated by conservatives. Does this mean it’s one cheer for Dahlia Lithwick? I don’t think so–but it sure is fun to hear a dyed-in-the-wool liberal sounding like…uh, Clarence Thomas.