Monday, May 10, 2010

Memo to President Obama and the new hire: Free my people

This is a post I first did back when Judge Sotomayor had acceded to the highest bench in the land.

The situation sucked then, and there are no signs it's gotten any better since. So here at the Dougloid Papers, we recycle.

Pardon me while I fulminate.

Memo From the Red Brick Universities: Free My People.

I've read a trenchant and worthwhile commentary on today which raises an issue that nobody ever wants to talk about and that is the monopoly stranglehold-a deathgrip, really- that Yale and Harvard Law have on the Supreme Court and the judiciary in this country.

There are about 193 or so ABA approved law schools in this country and a number of other good ones in the great state of California that do not parrot the ABA party line and so are denominated as lesser lights, suitable only for training courthouse johnnies, rude frontiersmen and ambulance chasers.

The people they graduate, for the most part, go on to demonstrate that they have what it takes to get the job done. They are what you call "lawyers".

Most of these schools have rarely had a graduate sit on a federal bench, and even fewer have had graduates elevated to the federal appellate bench or the Supreme Court.

It gets worse. Brian Leiter has collected data on which law schools have had a student clerk for a supreme court justice. There are exactly 33 schools that have had a student clerk for a Supremo since 2000, and the lion's share of those assignments went to a handful of schools. Of the 319 clerks. the top ten schools accounted for 274, and the top five accounted for 220.

That kind of numerical distribution is not only damned unfair, it's scandalous. In any other context that kind of statistical skew would be prima facie evidence of outrageous discrimination. It stinks of cronyism and an old boy network that makes the White Citizens' Councils look like a bunch of liberal commies.

Yo, Supremes, I'm talking at you.

It's the kind of patent unfairness that limits the future of students from the red brick universities. Parenthetically it cuts at the heart of egalitarian notions that many of us aspire to, and that was one of the reasons that some of us got into this line of work anyway-out of a sense of righting great injustices that were hoary with age.

What it is is a message: don't attempt to rise too far above your stations, o ye unwashed.

And it sticks in my craw.

Professor Timothy O'Neill teaches at John Marshall School of Law in Chicago and he's got this to say:

It is certainly true that the court needs more racial and gender diversity. Yet the homogeneity of the work résumés of the current justices is unprecedented. The right nominee would help to correct this.

Many commentators have noted that this is the first Supreme Court in American history in which every justice has come from exactly the same job: judge on the U.S. Circuit Court of Appeals.

But there are other "firsts" that are equally disturbing.

For the first time in American history, not a single justice has had any legislative experience. Not one has ever been elected to Congress, a state legislature or a city council.

For the first time in American history, not a single justice has ever held -- or even run for -- any elective office at any level of government. (Although Souter once served as a state attorney general, that is an appointed office in New Hampshire.)

For the first time in American history, eight of the nine justices attended one of only two law schools: Harvard or Yale. (Although Justice Ruth Bader Ginsburg graduated from Columbia, she transferred from Harvard Law School.)

The point's well taken but Professor O'Neill doesn't take it far enough.

The whole structure is ingrown, incestuous, and stinking with injustice.

Update: The current nominee, Elena Kagan, is at present the solicitor general and until reaching that post, she'd never- never ever tried a case in court. But she was the dean of Harvard Law.

What the hell kind of experience is that supposed to be? I've tried more cases.