That opening on the court
May. 5th, 2009 12:46 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
pecuniumI've not been paying a whole lot of attention to it.
What I do know, is I'd really rather not have one of the usual suspects get the nod. We have a court made up of Ivory Tower Academics. This is bad. The Court is asked to address all sorts of things, which have both legal aspects, and practical aspects in the real world. It behooves us to have justices who have spent some time in the real world.
Used to be that was the case. O'Connor had been a politician. Frankfurter had been an Ass't Secretary of war, and a prosecutor, before he became a professor at Harvard. Earl Warren was Governor of California, William Douglas was Chairman of the S.E.C. and Lewis Powell President of the U.S. Bar Association.
Powell was appointed to the bench in 1972. He was the last justice to have served in private practice. Hugo Black was the last to have been in the House (he was also one of the few justices one could sometimes call. If it was a first amendment case, related to free speech, the gov't lost his vote) He died in 1971.
There have been 108 people appointed to the court (two of them resigned as justices, and were later appointed chief justice). 40 of them were not judges before they were appointed to the court.
In the past 30 years this has changed. The path to the court has narrowed. Go to a Name Law School. Clerk for a Justice, teach at a Name Law School. Get appointed to the Federal Bench, make friends; hope.
I don't think this has been for the best. The court doesn't reflect the makeup of the nation.
Where are the present justices from? The East Coast (seven of nine). Where did they go to School? Harvard (six of nine). What did they do before they were appointed to the court? Sat on Appeals Courts (nine of nine). About half the population is female, one of the justices is. Something like 20 percent of the population is hispanic, none of the justices are.
This is a nation of immigrants, I don't think we have any justices who are closer than grandparents to an immigrant forebear.
These are all things to ponder. The law is not some mystical thing which happens in classrooms and courts, it's the nitty-gritty of streetlife (right now the court is looking at two cases about life sentences for minors; someone may manage to bring a 14th amendment claim to the differential treatment of crack vs. powder cocaine). It's what determines who can marry whom (someone might manage to revisit the ruling which outlaws polygamy... the underlying reasoning [that the disparity of men and women made it socially destabilising to have one man taking more than one woman] isn't what it was).
It shapes what sorts of contracts we get, the nature of our stock markets, and the way we do business with each other. The law defines torture.
We live in a nation, "planted thick with laws," and ought to be glad of it. We also ought to have arbiters of those laws who appreciate just what the decisions they make about them does to the people who have to live inside them.
What I do know, is I'd really rather not have one of the usual suspects get the nod. We have a court made up of Ivory Tower Academics. This is bad. The Court is asked to address all sorts of things, which have both legal aspects, and practical aspects in the real world. It behooves us to have justices who have spent some time in the real world.
Used to be that was the case. O'Connor had been a politician. Frankfurter had been an Ass't Secretary of war, and a prosecutor, before he became a professor at Harvard. Earl Warren was Governor of California, William Douglas was Chairman of the S.E.C. and Lewis Powell President of the U.S. Bar Association.
Powell was appointed to the bench in 1972. He was the last justice to have served in private practice. Hugo Black was the last to have been in the House (he was also one of the few justices one could sometimes call. If it was a first amendment case, related to free speech, the gov't lost his vote) He died in 1971.
There have been 108 people appointed to the court (two of them resigned as justices, and were later appointed chief justice). 40 of them were not judges before they were appointed to the court.
In the past 30 years this has changed. The path to the court has narrowed. Go to a Name Law School. Clerk for a Justice, teach at a Name Law School. Get appointed to the Federal Bench, make friends; hope.
I don't think this has been for the best. The court doesn't reflect the makeup of the nation.
Where are the present justices from? The East Coast (seven of nine). Where did they go to School? Harvard (six of nine). What did they do before they were appointed to the court? Sat on Appeals Courts (nine of nine). About half the population is female, one of the justices is. Something like 20 percent of the population is hispanic, none of the justices are.
This is a nation of immigrants, I don't think we have any justices who are closer than grandparents to an immigrant forebear.
These are all things to ponder. The law is not some mystical thing which happens in classrooms and courts, it's the nitty-gritty of streetlife (right now the court is looking at two cases about life sentences for minors; someone may manage to bring a 14th amendment claim to the differential treatment of crack vs. powder cocaine). It's what determines who can marry whom (someone might manage to revisit the ruling which outlaws polygamy... the underlying reasoning [that the disparity of men and women made it socially destabilising to have one man taking more than one woman] isn't what it was).
It shapes what sorts of contracts we get, the nature of our stock markets, and the way we do business with each other. The law defines torture.
We live in a nation, "planted thick with laws," and ought to be glad of it. We also ought to have arbiters of those laws who appreciate just what the decisions they make about them does to the people who have to live inside them.
![[identity profile]](https://www.dreamwidth.org/img/silk/identity/openid.png){kind=small}
no subject
Date: 2009-05-05 03:48 pm (UTC)Then there's this: the reality is that most of the exceedingly bright people that enter law attend one of the Top 5 law schools in this country, , which assumes facts not in evidence. Show me the stats which support the idea that "most" of the "exceedingly bright people" go to those top five.
You can't, because it's not so. The people who get into those schools are the ones with the very specific drives, and the ability to hit the benchmarks which get them into the feeder schools; the money to pay for those feeder schools, and the luck to be whatever it is the board selecting that years cohort is looking for.
I've been watching the courts, and the decisions, and the people sitting on them for some 25 years. I don't like the brahministic way we have taken to treating someone who went to Harvard, clerked for a Justice,and then to Academia (look at the choice of words you used, the classes that attend places like Harvard, and the classes that attend places like Texas Tech Law School. : WTF?, this isn't about the right spoon for the inter-course sorbet, this is about strip-searching eight yraar old girls because they were near a drug bust, and what defines "reasonable burden" when deciding access to medical care for women). Some of that comes, I know, from knowing a couple of people who've done that. They are brillian guys, but they don't have an understanding of the real world. They've never lived in it.
The law isn't engineering. There is no single best case; add precedent, and the need to gain consensus on an opinion, and the room for fixing error into the nation (Dredd Scot, Plessy v Ferguson) is too great.
It's not just that there are lots of brilliant people out there who won't go to Harvard, Yale, Princeton, Columbia, etc., it's that so small a pool means a narrower way, and style, of looking at the law. Which will tend to have a schoolhouse solution; and that hurts everyone.
Part 1
Date: 2009-05-05 05:52 pm (UTC)You can't, because it's not so.
I can show you the admissions criteria and the data related to the individuals that are accepted into those institutions, including GPA and LSAT. Those aren't perfect indicators (I'll be the first one to admit that), and of course there are exceptions to the generalization, but if you want a brilliant legal mind, chances are, you're going to have a better chance at finding one at a Top 5 school than a 4th Tier law school.
I've been watching the courts, and the decisions, and the people sitting on them for some 25 years. I don't like the brahministic way we have taken to treating someone who went to Harvard, clerked for a Justice,and then to Academia (look at the choice of words you used, the classes that attend places like Harvard, and the classes that attend places like Texas Tech Law School. : WTF?, this isn't about the right spoon for the inter-course sorbet, this is about strip-searching eight yraar old girls because they were near a drug bust, and what defines "reasonable burden" when deciding access to medical care for women).
That assumes that the only kinds of cases SCOTUS deals with are cases that deal with no-brainer issues like strip-searching a little girl in order to find ibuprofen and justifying it on the basis of the 'war on drugs.' (You don't even want to get me off on the tangent of strip-searching children in public schools because it pretty much makes my brain melt into a raging fit of WTF!) SCOTUS also deals with very complex legal issues that require an ability to understand, analyze, and de-compress involved legal doctrines. And, yeah—generally speaking, I'm going to trust someone's analysis of a conflicts of law issue more if they went to a school that employed people capable of teaching it and its intricacies better. I'm full willing to admit that generalizations are generalizations. There are always going to be exceptions. You can find a brilliant legal mind at Texas Tech Law School. I have no doubt of that. You're just going to find more brilliant legal minds to choose from at a higher ranked school, which is why a lot of appellate court judges come from those schools. That's just the way the admissions cookie crumbles.
Re: Part 2
Date: 2009-05-05 05:52 pm (UTC)They aren't "insular" and the same. Which is the entire issue. Ginsburg was one of the lone females in her classes at Harvard and Columbia. She also served as counsel for the ACLU regarding women's rights issues. Scalia is the son of an immigrant and a Catholic. Kennedy held numerous public service positions before being appointed to a Circuit Court bench. Stevens was heavily involved in anti-trust issues, lived through the Great Depression, saw his father lose everything as a result of embezzlement and corruption, and later served essentially as a special prosecutor related to corruption issues. Thomas is the descendant of slaves, grew up in an impoverished area, and grew up Black in the South. Souter grew up on a farm. Breyer grew up Jewish in California during and after WWII.
Are Roberts and Alito essentially cookie-cutter models? Sure. I'm not that impressed with either of them. I'm not that impressed by George W. Bush (another cookie-cutter). But, by asserting the other seven were "circuit judges" and thus lived in a vacuum that we should get out of ignores everything they did in their lives before they were appointed a circuit judge and essentially got them to that position in the first place. It also ignores all of the experiences they had before they were appointed.
The fact that Ginsburg made it to the "rarefied" position of "female circuit judge" isn't a disadvantage. She experienced things (like oppression and fighting for the poor) before she became a circuit judge. And, I'd take a Ginsburg any day over the week over a lacking-cronyism-Harriet-Miers-Clone. I might not like Thomas, and I might, generally speaking, think that he's entirely wrong on almost all of the issues that are important to me as a person and as a citizen of this country, but he doesn't have a cookie-cutter background either. Nor, does Scalia. If your entire point is that a person's life and experiences shapes the way s/he thinks about something and gives them a taste of reality, then you need to look at that person's entire life. Not, just the fact that the last thing that happened in their career was that they were appointed circuit judge.
Part one
Date: 2009-05-05 07:56 pm (UTC)The top schoolsare insular, they do breed a sameness. It's from tradition. It's from being told they aare the best and the brightest. It's from tenure (which I am all for). It's from being small. How many professors of ConLaw does Harvard Have? Which Chapbooks do they use? How often do they change them?
How long does a professor last? (Alan Dershowitz has been at Harvard, as a full-prof all my life, forty two years).
That leads to schools of thought. Shape the branch and you shape the tree. Diversity matters, not just of gender, but of comprehension. When the same materials were studied, taught by the same profs, with the same conceptions of the law (which, as you know is more quantum mechanics, than general phsyics, there are tendencies, but nothing absolute) similar understandings will result.
As for no-brainers... that strip searching was deemed legal. So the "no brainer" aspect of the cases which seem easy seem to be; not so much. We have justices writing opinions which say women can't be trusted to make decisions for themselves about what do do with their bodies; apparently because they are too emotional. How do a majority of the court come to that conclusion (because I don't recall any complaints with that line of reasoning in concurrence)?
The argument about LSAT and GRE assumes facts not in evidence. What the top five get to do is pack the house. They have density, but, as my first platoon sergeant said, that's an indicator, not a proof.
He was looking at us, and telling us we were the best and the brightest (we were; for what that's worth).
He went on, "You were selected from the top ten percent of the Army. Then you were tested to see if you had any talent for languages. You did, and you do. Even so, apptitue does not equal ability."
He was right (he had reason to be, we wereen't his first platoon, and he'd been through the same school). 1/3rd of us went to other languages, or other fields. That was before we went on to our follow on schools. All told less than half the people who start out for the jobs we were looking at made it.
The same isn't true of law school. First, the hurdles are more than the tests. The largest single group at Yale Law... Yale grads. Same for Harvard, and Cornell, etc.
Which puts a financial burden on people. Even if you don't spent the 80-100 grand to go to the same school you want to hit for law school, there's 60-100 grand to find for tuition to that top five school. Then one has to find room and board.
It's not a pure meritocracy either. Yes, one has to work, but getting through Law School is a lot more certain than getting through college; and a LOT more certain than making it as an interrogator for the army. It's not that the best and brightest don't go into those other fields, it's the way things are run (because it's not as if Harvard has an abnormally high pass rate).
Part two
Date: 2009-05-05 07:59 pm (UTC)Graduatin honors (cum laude, magna, and summa cum) are given to 31 pecent of the class. In event of ties, the numbers are increased.
The Bar Exam doesn't impress me much either. It's a test. Tests can be taught, and the cachét of places like Harvard comes, in part, from how high their bar pass rate is. It's a positive feedback loop.
I find it amusing that the Big Five are seen as some sort of special place, where the normal rules of institutions are suspended, but places like, "Texas Tech" are seen as being prone to them.
Why? Because we have fetishised them. Even when the fruits of their labors (look to see how many of the big players in the financial meltdown, from the present CDF/CDO problesm, to Enron, and yea, even back to the S&L problems of 20 years ago, all had Harvard MBAs) show them to be like-minded thinkers.
I would be shocked if there weren't samenesses in those who went to the same schools. Diversity of experience means more to me than of gender and race. Condoleeza Rrice was a middle-class kid from a well-to-do family. She went to Ivy League Schools. In the end those tell more about what she did than her being female, or black.
The same is likely to be true of those we appoint to the bench.
Apptitude, does not equal ability.
Some things about Law School
Date: 2009-05-05 09:23 pm (UTC)Also, law school grading? Crazy shit. The "curve" is all-important. If a law school prof gives an exam that's too easy, it's a disaster. If all the students in the class get between 95-100% of the questions right, then the poor SOB who got the 95 gets a D. The guy who got the 100 gets the A. Everyone else gets a scattering of the grades in between, depending on what forced curve the school is requiring of how many people get what grade and how many people have to fail. And keep in mind that this is on an exam that is almost certainly an essay that is graded extremely subjectively, and furthermore this exam is the only grade you get in the class. No real ongoing feedback. No chance to find out you've gotten lost. One grade, and even if you rock the exam you could get a D.
Meanwhile, what gets you the A's is making sure you parrot exactly what the law professor wants you to parrot to him. The people who get the good grades are the ones who think the most like the professor. They tend to go on to become law profs themselves. This tends to perpetuate a certain kind of theoretical view that doesn't do well with contact with real clients, but that's probably neither here nor there.
I guess what I'm trying to say is that the credential "Top Grades at Harvard" doesn't impress me like it used to. I don't actually think that makes someone a better or brighter lawyer than some of the people I went to school with or the people I work with as colleagues every day. It's all kind of a crap shoot if you ask me.
Also, I sure wish that all law schools did their Cum Laude honors that way. I see it as a way to inflate the value of the degrees the top tier grads get. As it is, in the top 15% of my class, I pretty much got a diploma. No complaints, I love what I do and I wouldn't trade it for a judgeship or a life of 80 hour weeks working for BigLaw. But I'm just saying, if that's their criteria for honors then I'm not impressed with that either.