Ever since the oral argument last week in the Supreme Court in Fisher v. University of Texas, which involves the constitutionality of the University of Texas' affirmative action program, Justice Antonin Scalia has been castigated and excoriated by commentators, mostly on the left, for asking the attorney for the University of Texas about the so-called "mismatch" objection to affirmative action. In Justice Scalia's words: "There are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a less -- a slower-track school where they do well."

Although I often disagree with Justice Scalia, and although I emphatically disagree with him about the constitutionality of affirmative action, the outrage and condemnation sparked by this comment is completely unwarranted. Justice Scalia's comment, which asked about the merits of an argument frequently made against affirmative action, and which was made specifically in briefs before the Supreme Court in this very case, was perfectly appropriate. As is often the case, Justice Scalia might have helped himself by framing his comment in a more sensitive manner. But the plain and simple fact is that his question gave the attorney for the University of Texas an opportunity to respond to one of the central arguments made against the constitutionality of affirmative action.

Read more at Huffington Post