Patterico's Pontifications



Filed under: Law — Angry Clam @ 6:29 am

[Posted by The Angry Clam]

Imagine, if you will, an attorney who has made numerous appearances before the Supreme Court, arguing various constitutional law claims. She’s also a respected academic, not only the author of one of the major casebooks in her field, but was, not long ago, Dean of the Stanford Law School, quite possibly the finest law school in the nation.

So what do you do? Well, if you’re Kathleen Sullivan, you leave that job to go take a highly-paid position as Los Angeles based firm Quinn Emmanuel’s head of the appellate practice group. Then you fail the California bar exam.

Yes, in an article entitled “Raising the Bar,” the Wall Street Journal reports on Ms. Sullivan’s performance. Here are the important paragraphs:

Kathleen Sullivan is a noted constitutional scholar who has argued cases before the Supreme Court. Until recently, she was dean of Stanford Law School. In legal circles, she has been talked about as a potential Democratic nominee for the Supreme Court. But Ms. Sullivan recently became the latest prominent victim of California’s notoriously difficult bar exam. Last month, the state sent out the results of its July test to 8,343 aspiring and already-practicing lawyers. More than half failed — including Ms. Sullivan. 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. The California bar exam has created misery for thousands of aspiring and practicing lawyers. Former California Gov. Jerry Brown passed on his second try, while former Gov. Pete Wilson needed four attempts. The recently elected mayor of Los Angeles, Antonio R. Villaraigosa, never did pass the bar after failing four times.

But it’s unusual for the exam to claim a top-notch constitutional lawyer at the peak of her game. “She is a rock star,” says William Urquhart, who last year recruited Ms. Sullivan to join his firm, Quinn Emanuel Urquhart Oliver & Hedges LLP. “Practically every lawyer in the U.S. knows who Kathleen Sullivan is.” If anyone should have passed, Mr. Urquhart says, it is Ms. Sullivan. “The problem is not with Kathleen Sullivan, it is with the person who drafted the exam or the person who graded it.”

Uh, sure there, buddy.

Anyway, I can think of two possible explanations.

First, since she’s admitted in other jurisdictions, she probably took the attorneys’ exam, which consists of only the essay portions and excludes the MBE multiple choice. That’s usually a big mistake- the attorney’s exam has about a 20% pass rate, some of which I have to assume is due to the lack of multiple choice.

Second, she’s not just a law professor, but a constitutional law professor. If anyone out there has ever read a law review submission by those types before it goes through the editing process (and usually even afterwards), you’ll understand why it is unsurprising that she did not perform well on the essay portion of the bar exam.

In any event, the WSJ notes that her name gets floated as a Democratic nominee for the Supreme Court. We could do worse than someone who was an attorney for Senator McConnell when he was challenging McCain-Feingold (think of the hearings fireworks!), but, seriously, I never, ever want to see the day when a Supreme Court Justice did more poorly on the same exam than I did.

— The Angry Clam

16 Responses to “Ouch”

  1. I don’t like to take pleasure in the misfortunes of others, but this one is hard to resist, since I had some unpleasant dealings with her back in the past.

    I have another theory: She just didn’t take the exam too seriously. You know, “How could I have any trouble with that stuff?”

    WSJ link for subscribers only, by the way.

    Attila (Pillage Idiot) (dfa1f1)

  2. As a veteran of the July 2002 exam (first time passing), and not being a constitutional scholar, former dean or on the short (or long) list of either parties’ judicial nominations, all i can say is: heh.

    And I took that test on a typewriter – the quota for laptops had already been surpassed by the time I signed up for the exam – so it was me, and about 200 other fools – pounding out our essays and performance sections for 6 hours a day on bloody typewriters. Earplugs could barely drown out the sound.

    Worst room to proctor in the entire State, I’d imagine.

    SoCalJustice (99cf7b)

  3. I can think of a few other explanations as to why she failed.

    1) Too big an ego (or, for a more charitable explanation, “not enough time”) to get instruction/tutoring or take bar bri or another similar class.

    2) Too big an “academic” ego to make up or invent a rule for an issue she spotted where she couldn’t remember the rule – because it’s “undignified” to “bullsh*t” your way through an exam.

    3) Because of explanation 1 or 2 (or a combination of both), she was unable to force herself to IRAC her way through the essays.

    SoCalJustice (99cf7b)

  4. I agree with Attila – the most likely explanation is she didn’t take the exam seriously enough. If I’m right, she’ll pass easily on the next go. As to whether it’s better to take the attorney exam or the full three days, I think it really depends on the individual. It would be for me, as the multistate was my strong suit, but most of my friends saw it as their nemesis.

    Xrlq (428dfd)

  5. I just find it mystifying that a Constitutional Law specialist would, if she in fact did, choose to exclude something that featured ConLaw prominently, like the MBE.

    And I was being charitable in not saying “too huge an ego” – I assumed that the fear of an article like this coming out was sufficient motivation.

    Besides, if I were her, I wouldn’t have told anyone, and I would have taken it in the most remote test center possible, and then handwrite it to avoid the possibility of anyone I knew seeing me.

    Interesting question, though- her bio says that she’s admitted to the 9th Circuit bar (which is possible since she’s the member of some state’s bar, and for the appeals courts you don’t need to be admitted to a state in their jurisdiction). Anyway, since she is admitted to practice law before the 9th Circuit, and since she is, apparently, only doing appellate work, I wonder if she really needs the California admission to practice, even though she’s in California, especially since it doesn’t seem as though QE does a lot of state court litigation.

    “Worst room to proctor in the entire State, I’d imagine. ”

    I don’t know- I bet they just switched off their hearing aides. I think it is a rule that you have to be at least 90 to proctor the California bar exam. My “favorite” moment came when a proctor pulled me aside on the first day as I walked to the bathroom (you can just get up and go) and whispered, in a serious voice, that I was “in trouble.” I nearly shit my pants, and then the proctor laughed and was like “just kidding.” Thanks, I needed that, buddy.

    Angry Clam (fa7fff)

  6. I nearly shit my pants, and then the proctor laughed and was like “just kidding.” Thanks, I needed that, buddy.

    What a jerk, though in retrospect it’s pretty funny. At least, for the rest of us. Good thing you passed anyway…

    Tom (eb6b88)

  7. It is very funny in retrospect.

    Not so funny at the time.

    Angry Clam (fa7fff)

  8. For a lot of people, test taking is an acquired skill that withers with time, even if you are on the teaching end of exams. My mother was a teacher when proposals for making teachers pass exams started, and she said that most of the teachers were absolutely petrified of the possibility. I’ve taught returning students with excellent academic backgrounds and been amazed at how inept they have become at things like test-taking.

    Curt (b8067e)

  9. As a math guy, when I hear that about half of the people fail, I think that means about half of them pass.

    A 50% pass rate seems pretty good, actually. Am I misunderstanding?

    I’ll note that it was about the same ratio when my father took (and passed, first time) the bar exam in California in, jeez, probably circa 1960. I don’t think it’s gotten relatively tougher since then, though obviously I can’t say in absolute terms, never having taken it. Or gone to law school.

    I took the LSAT, though. It was kind of fun.


    Dafydd abHugh (f8a7be)

  10. A 50% pass rate is the lowest in the nation by a good 10-15%. The bar isn’t like medical boards, where you expect to fail once or twice before finally passing.

    Angry Clam (a7c6b1)

  11. It’s tempting to say that a liberal Constitutional scholar would of course fail an exam based on actual laws.

    Crank (3fed2a)

  12. […] Kathleen Sullivan, noted Constitutional Law scholar and former Dean of the Stanford Law School failed to pass the (notoriously difficult) California bar exam… […]

    Jay » Blog Archive » A Nelson Muntz Moment (bcb8b9)

  13. Do you think this finishes her as a potential Supreme Court nominee? I mean, if the Republicans didn’t want her, they could justify voting against her on the basis that she is not actually qualified, no?

    Al (09b2d3)

  14. […] I’m surprised that Steve Minor hasn’t linked this yet: Imagine, if you will, an attorney who has made numerous appearances before the Supreme Court, arguing various constitutional law claims. She’s also a respected academic, not only the author of one of the major casebooks in her field, but was, not long ago, Dean of the Stanford Law School, quite possibly the finest law school in the nation. […]

    Commonwealth Conservative » Ouch (3e6668)

  15. […] You can see the Bar Exam that Kathleen Sullivan failed by clicking here. […]

    Patterico’s Pontifications » For Those Interested (421107)

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