Patterico's Pontifications

7/21/2007

Someone Who Failed the Bar for the Supreme Court?

Filed under: General,Judiciary,Law — Patterico @ 1:35 pm



In Jan Crawford Greenburg’s post about the usual posturing concerning the last Supreme Court term (which I discuss in this post), I found this offhand comment perhaps the most intriguing one in the piece:

Kathleen Sullivan, the former dean of Stanford Law School (who would be on any Democratic president’s shortlist for the Supreme Court), said the other day . . .

Someone who failed the bar would be on any Democrat president’s short list?

Put another way, as the Angry Clam did:

I never, ever want to see the day when a Supreme Court Justice did more poorly on the same exam than I did.

Now, look. I don’t really consider myself a snob about passing the bar exam. I have known plenty of smart people who have failed the bar exam, for whatever reason. As Greenburg notes, Sullivan was the dean of Stanford Law. She can’t be dumb. More than likely, she just didn’t take the test seriously enough.

But — call me an elitist if you want — but this is the Supreme Court. Nine people in the country can have that job. Why does one have to be someone who failed the bar?

If she didn’t take the test seriously enough, maybe there will be cases that she doesn’t take seriously enough. You know, like those cases about tax regulations, or dealing with Indian reservations.

Except that those are important, too.

Look at it this way: can you imagine John Roberts failing the bar? No, you can’t.

That’s the kind of person I want on the Supreme Court.

Not to mention all the other reasons that Sullivan — or any other nominee of a Democrat president — would be a disaster. But that’s a whole ‘nuther ball of wax.

47 Responses to “Someone Who Failed the Bar for the Supreme Court?”

  1. “any other nominee of a democratic president – would be a disaster”?

    that seems a little over the top. is partisan affiliation everything for you now? i’d take a supreme court justice who agreed with me, but flunked the bar once, over john roberts.

    assistant devil's advocate (c3f1ce)

  2. If “smart” is something more than what is measured by an IQ test – if it includes things like some modicum of self-awareness, the ability to prepare yourself for expected challenges, mastery of your own ego, and some semblance of discipline, I’ve not known any “smart” people who failed the bar.

    bobby_b (6dddbb)

  3. Consolidating 48 hours of pontifications:

    Miranda should be overturned.

    Any nominee of a Democrat president would be a disaster.

    And it’s “the socialist state that draws new illegals here.”

    My father lives.

    steve (1c66cc)

  4. As someone who also enjoyed the Bar Exam experience so much, I just had to do it a second time, I say, “bully for her!!!” All the more reason to elect a Democrat in ’08.

    Steve Smith (de5a83)

  5. i’d take a supreme court justice who agreed with me, but flunked the bar once, over john roberts.

    John Roberts would wipe the floor with you when it comes to case law, just like he did with the senators at his confirmation hearing.

    You’d take diminished quality just so they had the right inclinations? Typical liberal.

    Paul (0544fc)

  6. My father lives.

    Your father sounds like a great guy.

    Patterico (2a65a5)

  7. He tolerated me. While disparaging ones like me.

    steve (1c66cc)

  8. He tolerated me. While disparaging ones like me.

    He and I have a lot in common.

    Patterico (2a65a5)

  9. Wow, LA mayor Antonio R. Villaraigosa failed 4 times and then just gave up.

    jimboster (6e04e1)

  10. Wow, LA mayor Antonio R. Villaraigosa failed 4 times and then just gave up.

    {sarcasm}Did they let him take it in Spanish? I bet not you racist bastards!{/sarcasm}

    gahrie (de5a83)

  11. I considered his belief every nominee of a Democrat president would be a disaster obsessional.

    steve (1c66cc)

  12. Without putting too fine a point on it, the practice of law, and the office of judge, including Supreme Court Justice, has not always required passing a bar exam. In fact, I’d wager that plenty of historically revered judges never took, or even ever heard of, a bar exam. I also seem to recall that some highly regarded modern legal authors, whose work is often cited as authoritative, also never took or passed a bar exam.

    There is no federal constitutional requirement that judges have passed bar exams, or even have practiced law.

    So passing any exam, or even holding a bar card, as a sine qua non for appointing a judge is a modern policy, probably instigated by outcome oriented liberals. ;^)

    Occasional Reader (a8b3c0)

  13. Steve, why do you believe that the Democrats would nominate the right type of jurist? Democrats are populists and would nominate whoever they thought would please the people the most. Look at the fools they have nominated in recent history. Are these principled and unbiased arbiters of law?

    Scalia and Thomas routinely rule in ways that most republicans would disagree with… because their views are based on law and not politics.

    Dems are simply not going to go this way with their nomination. PAtterico isn’t pretending that dems are 100% evil or anything like that, but any dem nominee is going to be in favor of Roe V Wade, Affirmative Action, Raich, and all other sorts of radical and obviously dishonest readings of the constitution. There is simply no getting around that.

    Instead of amending the constitution to provide privacy, we just pretend it was always there. (and at the same time pretend the tenth amendment has no meaning).

    And I am pro choice and favorably view Affirmative Action. I just know that some the cases did not follow our law, and that’s a shame. We would have better system if the people amended the constitution.

    Dustin (d2049c)

  14. I don’t think it’s an issue at all. Yes, it’s evidence she didn’t take the exam as seriously as she should have the first time. So what? Maybe she learned from the experience, and now takes stuff seriously that law-geeks would generally dismiss as unimportant. Would you really prefer the other law professor who also didn’t take the second bar exam seriously enough, passed anyway, and learned nothing from the experience?

    Xrlq (a0a088)

  15. Paul (in #5)–I must assume you were among the conservatives dissatisfied with the Harriet Miers nomination?

    kishnevi (950fba)

  16. Hm, I’m thinking I don’t want a doctor who failed state boards examining me or my family, or my town’s police officers to not have passed the academy, or my kids’ teachers to not have passed the CBEST (at the least), so wouldn’t it even be more relevant for one sitting on the bench to have evidenced they take this matter very seriously (if that really was the reason for failing)?

    Dana (dd6f52)

  17. I agree on all counts, Dana. It would matter to me.

    DRJ (bea74b)

  18. Dustin,

    Where do you rank Harriet Miers in the legal Pantheon?

    alphie (015011)

  19. …if she didn’t take it seriously, why the heck not? Isn’t passing the bar sort of the point of going to law school?

    “You know, like those cases about tax regulations, or dealing with Indian reservations.”

    Good point. As a card carrying Indian, I definitely have reservations about this not passing the bar.

    Dana (dd6f52)

  20. I consider it neutral. No big deal either way. I worked my way through law school and by graduation I felt tired. I took the summer off to take BAR/BRI, with the help of my parents, and did feel a responsibility to get back to work. But … well … are we so short of lawyers that I had a specific responsibility to add to their number? Some of my fellow graduates were working as bartenders while on the wait-list for Assistant State’s Attorney or Public Defender even though they had passed the bar exam. The lady’s subsequent career is the indicator of whether she takes law seriously. (I did pass the first time, BTW.)

    nk (37689a)

  21. The quality of the work the Supreme Court does would be improved immensely if they fired half the law clerks. The court has been putting out increasingly long, and incoherent, opinions that muddle more than anything else.

    Oh, and fire all of Kennedy’s law clerks, and break his word processor, and that alone would double the quality of the court’s opinions.

    Robin Roberts (6c18fd)

  22. Paul (in #5)–I must assume you were among the conservatives dissatisfied with the Harriet Miers nomination?

    Good guess.

    Paul (0544fc)

  23. We would have better system if the people amended the constitution.

    It would be better if certain debates were allowed in Congress, instead of simply getting a ruling by a sitting judge. Judges are to interpret existing law, not create it.

    Paul (0544fc)

  24. Well, as Ms. Sullivan had previously passed the bar in New York and Massachusetts, practiced law for 25 years, including appearances before the Supreme Court, and has long been a respected constitutional law scholar who wrote the casebook on the subject ….

    http://daily.stanford.edu/article/2006/1/10/sullivanFailedCalifBarExam

    I’d take her at her word that she simply didn’t put the time into studying for this particular exam. In any case, I’d feel pretty confident about her qualifications.

    I don’t believe we know Sullivan’s score on the first exam, but to posit that someone who misses the mark by say, two points, is less qualified for a position calling for a broad range of expertise than someone who passes with not a point to spare reveals a certain lack of critical thinking on the part of the one doing the positing. In my view anyway.

    As for other examples…

    Would you want a state Attorney General who didn’t pass the bar the first time? Dan Lungren wouldn’t qualify for the job in that case.

    Talking about multiple losers like Villaraigosa … don’t forget 4-timer Pete Wilson, former mayor, Senator, and Governor. (Who graduated from Boalt Hall, not an unaccredited night school like the one Tony attended.)

    Itsme (a3cfbc)

  25. #

    Hm, I’m thinking I don’t want a doctor who failed state boards examining me or my family, or my town’s police officers to not have passed the academy, or my kids’ teachers to not have passed the CBEST (at the least), so wouldn’t it even be more relevant for one sitting on the bench to have evidenced they take this matter very seriously (if that really was the reason for failing)?

    Comment by Dana — 7/21/2007 @ 7:42 pm

    Well Dana, maybe you should link onto your various licensing websites and check out the licensing history of those people you describe.

    For instance, what would you think if you discovered that your doctor had passed the boards in two other states and had a respected and successful practice for 25 years, but took the California exam twice because he’d been working full time at the time? A yes or a no?

    Itsme (a3cfbc)

  26. A note to Angry Clam, who said:

    I never, ever want to see the day when a Supreme Court Justice did more poorly on the same exam than I did.

    Well, how do you know none of ’em didn’t?

    Itsme (a3cfbc)

  27. For instance, what would you think if you discovered that your doctor had passed the boards in two other states and had a respected and successful practice for 25 years, but took the California exam twice because he’d been working full time at the time? A yes or a no?

    I’d think my doctor either overestimated his/her abilities or was overextended. In either event, s/he would be my former doctor.

    And, yes, I do check the licensing status and education of all my family’s doctors. I don’t know any way to check how they did on their medical boards, internships, etc., but I ask their history when I first consult them. I’ve found that good doctors appreciate my inquiry while the others just get offended.

    DRJ (bea74b)

  28. DRJ –

    As a matter of fact, I check the status of my doctors as well.

    But unlike you I wouldn’t draw conclusions based on my own personal assumptions. I’d do a little more research … including other factors than test results.

    Itsme (a3cfbc)

  29. By the way, Dana’s post was implying that none of these people ever passed the relevant tests, not that they passed on the second time.

    Itsme (a3cfbc)

  30. My $.02…
    Ms. Sullivan gained her prominance through multiple appearances on the NY/DC talking-head shows as a legal scholar. That prominance, I am confident, resulted in her job offer from Stanford Law, which (as a condition of employment) specified that she must pass the CA Bar.
    It would seem that she did not take this job-condition seriously (Hubris, anyone?), and so is the former Dean of Stanford Law.
    And, no, I would not want her on the Court, as I think her personal philosophy (as discerned from her many appearances on Nightline, Charlie Rose, etc, etc) is anti-thetical to a nation that endorses and encourages personal freedom and responsibility.
    The Lady is not a Conservative!

    Another Drew (8018ee)

  31. “Well Dana, maybe you should link onto your various licensing websites and check out the licensing history of those people you describe. ”

    Overlooking your condescending tone, I will say I am not one to be careless with such important issues re my family.

    “By the way, Dana’s post was implying that none of these people ever passed the relevant tests, not that they passed on the second time.”

    No, it did not imply any such thing. Stop reading between the lines.

    Dana (8da8ef)


  32. My $.02…
    Ms. Sullivan gained her prominance through multiple appearances on the NY/DC talking-head shows as a legal scholar. That prominance, I am confident, resulted in her job offer from Stanford Law, which (as a condition of employment) specified that she must pass the CA Bar.
    It would seem that she did not take this job-condition seriously (Hubris, anyone?), and so is the former Dean of Stanford Law.
    And, no, I would not want her on the Court, as I think her personal philosophy (as discerned from her many appearances on Nightline, Charlie Rose, etc, etc) is anti-thetical to a nation that endorses and encourages personal freedom and responsibility.
    The Lady is not a Conservative!

    Comment by Another Drew — 7/22/2007 @ 12:15 pm

    I guess praticing before the Supreme Court over a 25 year period and authoring scholarly articles and a casebook on constitutional law – one that is used in law schools around the country – does not entitle one to any claim of prominence.

    And it’s just a guess, but I think that the fact that she was a professor at Harvard for nine years and at Stanford for another six years, not to mention her other professional achievements, might have resulted in the offer of the deanship. Just a guess.

    Stanford Law School did not require her to pass the California bar as a condition of employment. In fact, she taught there for six years and was the dean for another five years without ever having taken the California bar exam.

    http://www.law.stanford.edu/directory/profile/57/

    She took the exam in July 2005, several months after leaving Standford for private practice.

    Itsme (a3cfbc)

  33. #

    “Well Dana, maybe you should link onto your various licensing websites and check out the licensing history of those people you describe. ”

    Overlooking your condescending tone, I will say I am not one to be careless with such important issues re my family.

    “By the way, Dana’s post was implying that none of these people ever passed the relevant tests, not that they passed on the second time.”

    No, it did not imply any such thing. Stop reading between the lines.

    Comment by Dana — 7/22/2007 @ 12:21 pm

    Fair enough.

    Itsme (a3cfbc)

  34. itsme #28:

    As a matter of fact, I check the status of my doctors as well.

    But unlike you I wouldn’t draw conclusions based on my own personal assumptions. I’d do a little more research … including other factors than test results.

    I guess I don’t understand what “personal assumptions” means. How do you decide on a doctor, lawyer, or any professional if you don’t make a personal decision? Do you let other people decide for you, like some kind of vote?

    Of course, I didn’t say test results were the only factor I consider but it might not be a bad formula for narrowing down the list of possible physicians. After all, the best law schools base almost all of their admissions on the applicant’s LSAT & GPA results.

    DRJ (bea74b)

  35. DRJ #34:

    Well, you had stated that you would draw a conclusion based on a doctor’s test results. I realize I had postulated that maybe the doctor had been working full time, which may have led to your conclusion … but still, it seemed to me you were drawing a conclusion based only on personal assumptions about why he or she had to retake the test.

    Of course we hire professionals based on a personal decision, but that isn’t the same as a personal assumption. Ideally, the former would be the result of research or some sort of objective criteria. The latter is, well, an assumption.

    Sure, test results might not be a bad way to narrow things down, but I agree that in most cases it might not be the only factor to consider. Of course we’re talking about choosing a doctor, which is subjective anyway…not considering in the abstract what the qualifications for a judgeship might be.

    Actually, I get the sense that the best law schools take pains to tell you that they base their admissions on a combination of factors, with LSAT and GPA results being only a part of the equation. For example:

    http://www.law.harvard.edu/admissions/jd/apply/

    Itsme (a3cfbc)

  36. Itsme,

    Well, you had stated that you would draw a conclusion based on a doctor’s test results.

    I’m confused, again, because I stated in comment 27 that I “check the licensing status and education of all my family’s doctors” and that I don’t know of any way (except asking the doctor) to know the details of their test results. To me, that sounds more like a personal decision based on research than an assumption.

    In any event, I agree that “the best law schools take pains to tell you that they base their admissions on a combination of factors.” That’s why it’s so interesting that they all end up admitting applicants with high LSATs and GPAs. Perhaps that happens by coincidence but I suspect it’s by design, especially since the US News’ rankings place such a high premium on those factors.

    DRJ (bea74b)

  37. DRJ # 36:

    Well, I see a conclusion that says “the guy flunked the test because he was overestimated his abilities or was overextended” as one based on an assumption. Of course one would need more info to draw such a conclusion, but as you say, one normally doesn’t ask such questions of one’s doctor, so we remain in the world of the hypothetical.

    As to the law school admissions thing, I just disagreed with your statement that “the best law schools base almost all of their admissions on the applicant’s LSAT & GPA results.”

    Sure, most successful applicants to the better schools have high scores. But plenty of unsuccessful applicants have high scores too.

    Itsme (a3cfbc)

  38. Sure, most successful applicants to the better schools have high scores. But plenty of unsuccessful applicants have high scores too.

    I really don’t see your point. The top tier law schools have a glut of applicants with high scores so of course they turn some high scorers away. The point is there aren’t many non-minority applicants admitted who have low scores. In other words, law schools (and medical schools, for that matter) want a diverse student body provided they have high test scores.

    You’re right that I made an assumption regarding “overextended” vs “overestimated.” S/he could just be stupid.

    DRJ (bea74b)

  39. DRJ # 38:

    Again, my disagreement was with your statement that “the best law schools base almost all of their admissions on the applicant’s LSAT & GPA results.”

    Which of course is a different equation than saying most successful applicants have high scores.

    And as to assumptions, there’s always: “S/he hired an extra terrestial to take the test…big mistake.”

    Itsme (a3cfbc)

  40. Itsme:
    Pardon me for my ignorance of the finer points of Ms. Sullivan’s resume; but, there are probably a couple hundred lawyers with identical resumes who were NOT offered a Deanship. She was a celeb within the law community, and so, was a prize acquisition, similar to a Nobel prize-winner.
    Plus, it was widely reported in the MSM (even in the dog-trainer), that passing the bar was a condition of her continueing employment as Dean. Otherwise, why did she leave? And, who cares?
    The students of Stanford would be better served by being led by somebody with a higher sense of professionalism.

    Another Drew (8018ee)

  41. Yeah, those Nobel-prize winners are just media celebs.

    I’d be interested in seeing a link to anyof those “widely reported” stories saying that Ms. Sullivan was required to pass the California bar as “a condition of her continuing employment as Dean,” five months after she left the position for private practice.

    Although she is licensed to practice law in New York and Massachusetts, Ms. Sullivan was taking the California exam for the first time after joining a Los Angeles-based firm as an appellate specialist.

    . . .

    Last year, after announcing she would step down from her Stanford post, Ms. Sullivan joined the Silicon Valley office of Quinn Emanuel Urquhart to head a new appellate practice.

    http://www.post-gazette.com/pg/05340/618227.stm

    So please, back up your claim ….

    Itsme (a3cfbc)

  42. Itsme #38:

    And as to assumptions, there’s always: “S/he hired an extra terrestial to take the test…big mistake.”

    Okay, that was funny.

    DRJ (bea74b)

  43. Heh, thanks.

    Itsme (a3cfbc)

  44. Itsme,

    This has gone way off-topic but we know from court testimony that at least two law schools used (and probably still use) indexing to initially rank applicants: Univ. of Texas School of Law (Hopwood) and Univ. of Michigan Law School (Grutter v Bollinger). It’s likely that most law schools use an LSAT/GPA index at some point in the admissions process. If your point was that some applicants get closer scrutiny after the initial ranking, I agree but many are rejected automatically or are presumptive admits because of indexing. That’s why I stated the process is largely based on numbers.

    DRJ (bea74b)

  45. It has gotten pretty off-topic. I think we’ve really agreed that:

    1. The best law schools don’t really “base almost all of their admissions” on test scores.

    and

    2. Law schools generally use test scores in combination with other factors…to what extent they’re weighted may vary.

    Itsme (a3cfbc)

  46. No, we haven’t agreed. I stand by my statement and provided evidence to support it.

    DRJ (bea74b)

  47. itsme #41…
    I don’t have the time to do a Goggle search for the data that I read, and I won’t.
    I can take comfort in the fact that Ms. Sullivan has less chance of being a Supreme than Robert Bork; and, if she hasn’t passed the bar as yet, won’t be depriving some litigant here in CA of proper counsel.

    Another Drew (8018ee)


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