Judicial Boycotts of Non-Elite Schools

In April 2009, a law student at American University asked Justice Scalia how a student from her school could become "outrageously successful" without "connections and elite degrees." (The clip begins around 52:00.) Scalia laughed out loud. He answered, "Just work hard and be very good." But then he digressed to a story about Judge Jeff Sutton.

Let me tell you a story. By and large, unless I have a professor on the faculty who is a good friend and preferably a former law clerk of mine whose judgment I can trust--I'm going to be picking for Supreme Court law clerks, I can't afford a miss. I just can't. So I'm going to be picking from the law schools that are the hardest to get into, they admit the best and the brightest. They may not teach very well, but you can't make a sow's ear purse out of a silk purse. If they come in the best and the brightest, they are probably going to leave the best and the brightest. One of my former clerks [Judge Jeff Sutton] who I am the most most proud of, now sits on the Sixth Circuit Court of Appeals.  And I always refer to him as one of my former law clerks. He wasn't one of my former law clerks. [Sutton] was Lewis Powell's clerk. After Lewis took senior status, Lewis didn't have much work. [Sutton] worked full time for me. So I couldn't tell the difference between [Sutton] and my other clerks. But I wouldn't have hired Jeff Sutton. For G-d's sake, he went to Ohio State. [Scalia laughs.] And he is one of the very best law clerks I've ever had. He is just a brilliant guy. So don't tell me this stuff about "what do you have to do to be successful." You have to be good. I think we're done.

Scalia relayed this story several times over the years, and he was fond of telling it. The upshot is that under his own policy, he would have never hired one of his favorite law clerks.

In November 2008, during my 3L year, Justice Thomas visited the George Mason University School of Law. After a lecture in then-Professor Rao's class, I asked Justice Thomas what it would take for a GMU grad to clerk on the Supreme Court. (Apparently I had a similar thought as the American student would some months later.) Justice Thomas answered, matter-of-factly, "I hired Will Consovoy, ask him," and pointed at his clerk. I don't think I had met Will Consovoy before, but I would never forget him. (Justice Thomas also signed my pocket Constitution that day, which still hangs on my wall.)

There were many differences between Justices Scalia and Thomas. One of them concerned clerk hiring. In OT 2008, Thomas hired law clerks from Creighton, George Mason, George Washington, and Rutgers. Thomas told students at the University of Florida, "They referred to my clerks last year as TTT, third-tier trash. That's the attitude that you're up against."

Things have gotten slightly better over the past decade. Justice Thomas still routinely hires outside the T14 (top 14, roughly defined). Justice Alito has joined the mix with clerks from BYU, George Mason, LSU, Minnesota, Ohio State (yes, THE Ohio State University), and a few others. Justice Gorsuch has hired grads from Iowa, Mississippi, and BYU. And Notre Dame, which is skyrocketing in the clerkship rankings, is consistently placing grads at the Court. But otherwise, the Justices exclusively hire from elite, T14 law schools. Would anyone say that the non-T14 clerks hired by Justices Thomas, Alito, and Gorsuch, are inferior to the regulars from Harvard, Yale, and Stanford? I personally know many of these clerks, and they have gone on to great accomplishments.

Could one say that the Justices have imposed a boycott of every other law school outside the T14? I'm sure they would resist the characterization. For sure, they have not announced any public boycott. But the practical consequences of their hiring pattern is that students who graduated from non-elite law schools are persona non-grata. How many Jeff Suttons were missed by having such a restrictive view of hiring? On a related note, Justice Ginsburg had a de facto boycott of all HCBUs.

Judges on the inferior courts also restrict hiring to superior schools. It is well known that certain judges will limit their hirings to certain elite institutions. I learned this lesson firsthand. When I was a 3L, I applied to many federal clerkships--even those that I knew were out of my league. (I encourage you to read about my clerkship application process.) One of those judges was Frank Easterbrook of the Seventh Circuit Court of Appeals, a true giant in the law. I did not get the clerkship--no surprise--and Judge Easterbrook sent a form email to explain why:

I must inform you that I have selected my clerks for 2010-2011. The task of attempting to choose from among so many people with excellent credentials has led me in the last few years to ask the Clerkship Committee of the University of Chicago, where I still teach, to make recommendations with the expectation that two outstanding people who pass that Committee's scrutiny will do well with me. The Committee this year recommended two outstanding students and I hired them.

This method has an arbitrary consequence for many, but there is an arbitrary quality about the whole clerkship selection process. My way of choosing clerks closes the doors to many excellent candidates, but the places my two clerks do not occupy will still be open in other chambers. You have my best wishes in finding a position with one of the many judges who have yet to choose.

Judge Easterbrook, as could be expected, makes sense. Limiting hiring to particular schools does have "arbitrary consequences." It is a myth that federal judges fairly consider every clerkship applicant on an individualized basis. Considering applications from some schools, but not others, is a useful heuristic for busy judges. Ditto for law firms. Some firms will not hire at non-elite schools. This is well known. (For those curious, I have hundreds of scanned and OCR'd rejection letters from federal judges and law firms; I still haven't found quite the right opportunity to publish them, but I will at some point.)

Is it fair to say that Judge Easterbrook boycotted every single law school other than UChicago? Probably not. But that is the practical consequence. At least Judge Easterbrook had the courtesy to send a candid response explaining why my (and many other) applications never made it off the pile. The rejection was in no way a reflection of my candidacy--other than the fact of where I chose to go to law school.

At the time, I had also applied to Judge J. Harvie Wilkinson III of the Fourth Circuit Court of Appeals. I have no record of receiving a reply from him, though I have no doubt my application was dinged at the outset. I went to the wrong public law school in Virginia. So be it. I am blessed to have clerked for two remarkable judges, and would not change a thing.

This background brings me to the present. Last week, Judge Wilkinson opted to speak to the National Law Journal about the Columbia boycott. Judges are under no obligation to talk to the press. But Judge Wilkinson thought it important enough to use his stature to signal his distress at Judges Ho, Branch, and Solomson (perhaps more effective than flying a flag upside-down.) Judge Wilkinson apparently believes that judges have some role to play in calling out when they think other judges misbehave.

Judge Wilkinson offered this comment:

I will not be participating in any of these boycotts. It all smacks too much of guilt by innocent association.

Students should be seen as individuals. Many have striven to achieve commendable records. They have every right to be judged by their accomplishments, not blacklisted based on what institution they may happen to attend.

I was struck by this quote, as having gone through the application process. Has Judge Wilkinson, over his four decades on the bench, viewed all law clerk applicants "as individuals"? Has he, or his staff, rejected any applicants solely on the basis of "what institution they may happen to attend"? How many clerks has he hired outside the T14? How many has he interviewed, or at least seriously considered? I don't have the answer to these questions. Judge Wilkinson surely knows. The National Law Journal and other outlets can ask Judge Wilkinson about his hiring practices, and whether he boycotts 95% of law schools. He might respond that lower-ranked schools cannot produce clerks of the right caliber. But that cannot be right as a blanket rule. What about Judge Sutton, and the other clerks hired by Justices Thomas, Alito, and Gorsuch from non-elite institutions. Such a response would "smack too much of guilty by innocent association."

Judges in glass robes should not throw stones.

Aliza Shatzman, who founded the Legal Accountability Project, criticized the recent boycott of Columbia. But she also faulted judges for not being transparent about their hiring practices:

This manufactured controversy is just another example of the lack of transparency and equity in clerkship hiring. While most federal judges do not resort to attention-seeking tactics, many do prioritize or deprioritize certain law schools — and other characteristics — in their hiring decisions. This lack of transparency not only perpetuates inequity, but also undermines the integrity of the judiciary.

I agree with Shatzman. All things being equal, I would prefer that judges be candid about which law schools they would hire from, and which law schools they would not hire from. Put it right on OSCAR! Indeed, it would be ideal if judges can explain why some schools make the cut while others do not. Judge Easterbrook's honesty was refreshing to 3L Josh. This transparency would save a lot of time and effort on behalf of applicants. But I suspect making these announcements public would make judges feel uncomfortable. They are happy to throw applications from 95% of schools in the garbage, but would never want to admit as such. Quiet boycotts are always far simpler. I think there is some virtue in a public, reasoned, and prospective boycott, but you knew that already.

In the past, I have proposed eliminating Supreme Court law clerk positions altogether, and radically altering clerkships in the lower courts. The experiences of the past few years have made me think these options are worth pursuing.

Comments

[Frank Drackman]

While I agreed with most of his opinions, Scalia was a prick.
When hiring new Gas Passers, I do look at their Med School, some of the best have been graduates of schools in the Former Soviet Union, Ear-Ron(!)(Passing Gas is a business, I'll worry if you're going to blow up my car later) Israel, University of Lagos, except for Israel, which is basically a less formal version of US Medicine, in the developing world they don't just MRI everything that walks in the door. And except for Israel, they're grateful just to be here.

Frank

[Krychek_2]

I just finished reading an interesting book called The Tyranny of Merit by Michael Sandel. He argues that merit is mostly an illusion and success has more to do with luck than anything else. One has no choice about being born smart or stupid, or what kind of parenting one has, or whether the family has the resources to get you into an elite school. And, further, the illusion of merit creates both hubris in those who succeed and undeserved feelings of inferiority in those who don't. A hereditary aristocracy would actually be an improvement because at least that way there would be no illusion that those at the top are there because they deserve to be.

I'm not sure I completely agree with him, but I think there is some validity to his claims. Maybe it doesn't change any bottom lines -- a law degree from Harvard will always be worth more than one from South Texas -- but it might change how society looks at it.

[Martinned2]

All else equal, you'd still want to hire the clerk who is lucky enough to be born smart, presumably?

[Krychek_2]

Of course. All else being equal I'd also rather wake up next to someone attractive than someone ugly. But I don't pretend that it's anything other than luck that the pretty one is pretty. Sure, there are things one can do to work with the gifts one has, but nothing is going to turn Rosie O'Donnell into Playboy centerfold material.

[Martinned2]

Indeed, but Josh was trying to argue that justices and judges should hire dumber clerks, or at least people who are less good at getting admitted to elite law schools. (Which is, as far as I can tell, an entirely different thing.)

[Lee Moore]

Sure, there are things one can do to work with the gifts one has

Does not that concession rather defeat Sandel’s thesis ?

Success comes from natural talent, effort and the favor of the gods.
The middle one you earn.

Moreover, from a social point of view, since it is usually impossible to distinguish what share of your success (or failure) derives from each of the three sources, organising society to confiscate the rewards of success from the successful (and conversely to cure the unsuccessful of their failures) necessarily means that there will be more failure and less success.

Thus the hubris of the successful, while certainly annoying, is socially valuable. If the successful believe that they are responsible for their success, then they, and wannabee emulators, are more likely to put in more effort.

[Krychek_2]

No, because the "gifts one has" vary widely from person to person and are frequently a matter of luck. If someone is the child of a crack whore, that's not his fault, but it's almost certainly going to disadvantage him for the rest of his life. And even if he had natural talents that could have been developed, chances are good he's never going to learn how to develop them.

[Lee Moore]

And what does that have to do with the value of effort and the benefits to society of incentivising it ?

[Krychek_2]

You're confusing two issues. There is no contradiction in recognizing both that encouraging people to do their best is a good thing AND ALSO that for a lot of people, their best will be dwarfed by circumstances completely beyond their control.

[Lee Moore]

No contradiction at all. It's simply that your precis of Sangel's argument failed to mention effort, and your yourself acknowledged that effort had a role to play :

"Sure, there are things one can do to work with the gifts one has"

Now

for a lot of people, their best will be dwarfed by circumstances completely beyond their control

I disagree. There will undoubtedly be a small number of people on whom the gods have heaped misfortune after misfortune. But most children born to poor families are not also suffering from debilitating illnesses, and most lead fairly successful lives. They don't go to prison, they get and keep jobs, they find a mate and have kids. That's success in any money. Some even become President.

Moreover virtually everybody in the bottom 20% in the Western World (and the richer parts of the rest) is healthy and wealthy compared to the comfortable middle classes a hundred years ago.

See below re government programs.

[Krychek_2]

Neither Sandel nor I said anything about discouraging effort; you're projecting that. Of course people should make the best of what they've got; nobody is arguing to the contrary. The question is, after the less lucky have made the best of what they've got and it's still lacking, while others who are more lucky have gotten further ahead on far less effort, it's really valid to credit effort more than luck.

And please recall that this discussion arose in the context of who gets a Supreme Court clerkship. Well, if you're rich, your parents can afford SAT prep courses and tutors that get you into good schools. If you are the child of a Yale alum, your chances of getting admitted there go up dramatically, and if your parents can afford to donate a million dollars, they just went up again. If you happen to wake up the morning you're scheduled to take the LSAT with a head cold and it impacts on your score, you may not be going to Harvard after all. There is a whole long list of pure dumb luck factors that determine who rises to the top, and a lot of people who don't make it to the top could have, they were just unlucky.

And that's before we even get to all the stupid mistakes people make. Sometimes they can be fixed; sometimes not. Is it a credit to my effort that the specific mistakes I made were mistakes I could fix, whereas someone else permanently wrecked their chances in life by choosing a different type of dumb mistake? I have a former client who was headed for great things until he landed on the sex offender registry for getting drunk and urinating in public when he was in collect. Other people get drunk and do dumb stuff with no real consequences; he's just unlucky.

[Lee Moore]

Neither Sandel nor I said anything about discouraging effort; you’re projecting that.

No, I’m just relying on your precis which did not mention effort and used the expression “the illusion of merit.” It’s not an illusion.

First because merit in the sense of desert is more than trivially relevant to success (because of effort)

And second in the other sense of merit ie superior quality – ie if you’re good at something you’re good at something, whether you earned it or not. We do not want affirmative action bridge builders.

And please recall that this discussion arose in the context of who gets a Supreme Court clerkship.

You got me there. I’m struggling to think of a subject in which I’m less interested. Unsuccessfully.

[Krychek_2]

I didn’t mention it because my primary point is that luck frequently matters more. Whether someone is good at something is also a matter of luck. You think Einstein did something to be born with his brain?

And you’re right that we don’t want bridges built by people who don’t understand math, but again, it’s their good luck that they understand math. It’s my good luck that I’m a good trial attorney. Doesn’t mean I don’t also work hard, but aptitude is a free gift that all the work in the world won’t make up for.

[Krychek_2]

And I think liberals and conservatives, as a general proposition, make mirror-image errors. Conservatives tend to underestimate the extent to which success is the result of good luck; liberals tend to ignore the things that people can do to improve their own situations.

I'm successful. Part of it is that I worked hard to get here, but I also had a lot of help along the way and benefitted from circumstances I did little to create. Which is why I'm willing to pay it forward by supporting government programs that make it easier for other people to be successful too.

[Lee Moore]

Conservatives tend to underestimate the extent to which success is the result of good luck; liberals tend to ignore the things that people can do to improve their own situations.

I agree and I might add mirrors to your mirrors - ie liberals tend to overestimate the extent to which success is the result of good luck (Sandel's thesis being a good example) and conservatives tend to ignore things that are beyond the control of the unfortunate. I would add that it's not simply a conservative / liberal thing. It's also a successful/ unsuccessful thing. Successful people tend to think their success is mostly down to them, unsuccessful people tend to think their failure is not down to them.

Which brings us to goverment programs - of which I am highly sceptical. For two reasons :

First, as mentioned above the poor of 2024 would have been very well off in 1924. The poor rise absolutely through general economic growth, even if they fail in relative terms. More economic growth floats all boats. Goverment programs depress economic growth.

Second, whether your chances of success are quite good based on an unfairly large allocation of gifts (of talent, parental help, sheer luck etc) or not very good based on the opposite, putting in a bunch of effort will improve your chances of more success / less failure wherever you stand in the talent/ sheer luck spectrum.

Therefore as a matter of policy DO NOT discourage effort, or subsidise the lack of it. Another reason to stay away from government programs, and the taxes required to fund them.

Of course pursuing a mostly laissez faire policy won't produce a "fair" outcome in the sense that the lucky will have more success than they deserve from their own efforts, and the unlucky less. But government programs will subsidise lack of effort and punish effort, and the associated taxes will depress the economic growth that floats the boats of the unsuccessful as well as the successful.

[Lee Moore]

I will also add that plenty of people with lots of advantages, and perfectly decent allocations of luck are not successful because they are lazy bums. Within which I include folk who are not persistent, who prioritise leisure over work and who avoid thinking and making plans, even though they're quite capable of it, because it's too much effort.

I don't buy the idea that success comes from 45% talent, 10% effort and 45% sheer good luck. I'd be giving effort 30% minimum.

[Krychek_2]

I would like to see some hard data for the claim that subsidizing lack of effort leads to more failure. I know that's a libertarian talking point but I've never actually seen any hard data to support it. If that were the case, everybody in Denmark and Sweden would be on welfare, but that's not the case. Their employment rates are about the same as ours.

[Lee Moore]

Well it may not be hard data, but I will offer anecdotally the standard tale of 1st and 2nd generation immigrants from less fortunate lands.

The 1st generation has a healthy work effort caused by the fact that they grew up where the alternative to hard work was genuine poverty or even starvation. Self discipline was installed by reality. So they work hard and make a success of their new country even if that amounts to no more than owning a small shop. But the 2nd generation is as lazy as the natives. Cos they are natives ????

Or you could look at the children of the very rich. No shortage of wastrels there.

[Krychek_2]

The plural of anecdote is not data. Get back to me when you’ve got solid numbers.

[LawTalkingGuy]

In the context of judicial/political/academic appointments, obsession with meritocracy also results in the incorrect belief, that is typically delivered in bad faith, that there is always someone who is the "most qualified" for any position.

It's easy to launder racism/sexism or ideological objections under the guise of "merit" and "qualifications." Any time a PoC is nominated for something, some Ilya Shapiro, instead of saying what he really thinks, gets to discuss "qualification" based on fairly arbitrary criteria. (Barrett is more "qualified" than Jackson because a long career on a district court is not as good as a short career on Circuit court, but Sotomayor who had an even longer judicial career on both types of court is "unqualified" for reasons...)

[huskerdru]

Just so. There is no such thing as a “most qualified” candidate for virtually any job.

[LawTalkingGuy]

There are probably some discrete tasks where someone is "most qualified" due to its rarity and complexity and the person's training and experience. I don't have a problem believing that a particular individual neurosurgeon is the "most-qualified" person to do a certain procedure. But when work becomes varied, as it is with judges and administrators, then the idea of "most-qualified" is kind of nonsensical, because most jobs aren't super-hyper focused. You can't have a "most-qualified" SCOTUS justice for the same reason there isn't a "most-qualified" doctor in the world.

[Lee Moore]

Indeed. And for exactly the same reason "the best interests of the child" is a ludicrous standard.

[David Nieporent]

But that there is no one "most qualified" for most jobs does not mean that one cannot group people into more or less qualified categories. And I guarantee that every knowledgeable person had shortlists for SCOTUS nominations, of the people in the top grouping. Obviously there would not be much if any overlap between a Republican's list and a Democrat's list — but if you asked a good faith Republican to create a Democratic shortlist, and vice-versa, the GOP's list of Dems and the Dem's list of Dems would look similar (and, again, vice-versa). It's not arbitrary.

Moreover, if a president said, "I'm only going to consider someone who's less than 5'6" in height," we would have no issue arguing that this is unlikely to produce the best choices. (Though it would benefit me!) Noting that does not mean that one thinks short people are inherently un or less qualified.

[Lee Moore]

Short people got no reason to live.

[Bob from Ohio]

Libertarians are disproportionately short men .

[Sarcastr0]

I just finished reading an interesting book called The Tyranny of Merit by Michael Sandel

Huh. I have 'The Tyranny of Metrics' by Jerry Z. Muller coming up on my reading list.

[Krychek_2]

I had not heard of The Tyranny of Metrics" but I googled it and it looks interesting so I will add it to my list. From the description it sounds like there is at least some overlap between the two books.

[loki13]

Again with the water carrying!

A false equivalency is still false. Let's put this as simply as possible.

No one argues (yet, this may change thanks to Ho et al.) that judges should not be allowed to pick their clerks. No one believes that judges may have preferences.

I think that people may have a good argument about the sorting mechanism some judges use (for example, some only look for applicants from "the best schools" to choose from, others that I know prefer to choose from schools with a certain state or geographical region, and so on).

But the reason that what is happening now is different is that Judges should not be trying to use their hiring preferences to influence policy. This is real basic stuff.

If a judge doesn't want to hire a BYU grad, for example, whatever.

If a judge announces, "I am not hiring BYU grads because of BYU's honor policy specifically calls out abstaining from same-sex romantic behavior," then that would be an issue, because the judge is using his hiring prerogatives to try and influence public policy.

Either JB doesn't understand this, in which case I have to truly question his ability to issue spot, or he does and he is simply throwing up garbage to defend Ho and company.

[apedad]

Number 2.

It's # 2.

[David Nieporent]

Why do you give him so much credit?

[LawTalkingGuy]

He's absolutely water-carrying for those judges. But I think this particular post is more about his resentment over his not having his brilliance recognized by judges and academics everywhere despite where he went to school. And even now that he's in a position where he can be name-checked in an oral argument by Alito, he's still resentful, because he'll never get the respect he craves from the rest of the "elite."

"A true victory is to make your enemy see they were wrong to oppose you in the first place. To force them to acknowledge your greatness."

[loki13]

"And even now that he’s in a position where he can be name-checked in an oral argument by Alito"

Honestly, that's not something I would be happy about. I'd try to get that de-indexed from google, likely leading to a series of posts from EV.

As far as Alito is concerned- "Keep my name out of your mouth."

(No, I am not kidding.)

[LawTalkingGuy]

Fair. But then again it’s probably fun to be like Josh Chafetz: and say thanks for the cite, but you didn’t understand my work.

But you’re right. If I was name-checked or cited and in full agreement with him on a point….I’d be in an existential crisis.

[loki13]

I mean, honestly I'd rather be name-checked by Justice Thomas.

Unfortunately, I just can't afford it!

(rimshot)

Seriously, though, I can imagine feeling some pride for being name-dropped by any of the current Justices, except Alito. That would just feel kind of icky.

I have noticed that the majority of Justices tend to start going off the rails after a certain period of time (contrast early-period Scalia with late-period Scalia). Alito ... well, he's gone from authoritarian and bad to purely outcome-oriented.

(He was also the basis for my quick guide to determining the what opinion was correct. Refresher-

If you don't have time to read an opinion, and you want to know which side is likely to be right, this is the quick way to find out:
1. If Kagan and Roberts are on the same side, that is the correct side.
2. If they are not, then it is whatever side Alito is not on.

You will be shocked at how often this works.

[LawTalkingGuy]

Yeah. He was never great, but he’s got a lot worse. Brain is absolutely fried from Newsmax. What I don’t get is Gorsuch joining his dumbest opinions: CA v TX and this CFPB one. Especially when Thomas is giving him an out!

He’s probably going to join a highly stupid Alito (hopefully) dissent on Mifepristone and EMTALA too.

[loki13]

For someone who is supposed to adhere to a judicial philosophy that constrains his results (textualism), Gorsuch sure is all over the place.

I can't even say that he is bad at this point, because I honestly don't have much of a clue what he is doing the vast majority of the time. That said, I do believe that he thinks that he is principled, and I do think that he judges in accordance with those principles (which I appreciate) even if those principles appear to be inscrutable to everyone else.

[LawTalkingGuy]

I agree he definitely thinks he has them and his jurisprudence indicates that he can have them. But man those two dissents are so at odds with his principles it’s kind of hard to explain.

[nystateofmind]

Gorsuch is not a textualist. He is probably the most closest to “Libertarian” and small government as you will see on the current Supreme Court. If you view it from that lens his dissent makes sense as he does not like the administrative state at all.

[loki13]

To channel Scalia, maybe Gorsuch is a "faint-hearted textualist."

Then again, given his choice in the CFPB to join Alito, it's hard to say that he is either "faint-hearted" (in that he joined an opinion that would nuke the economy) or that he's a textualist.

I would have to say that, to adopt your view, he is a textualist who also wants to make the administrative state small enough that he can give it to Governor Noem to shoot dead.

[CommentMonkey]

How exactly would the dissent in the CFPB case "nuke the economy"?

[loki13]

Look it up, or see who filed amicus briefs.

If you're not a payday lender (speaking of which, Todd Z hasn't posted in a while!) you actually need the legal structure provided by the CFPB.

Most of the commenters here just understand it in terms of consumers, but it also provide a valuable framework for the financial service industry.

Like I said, it's all out there. Not a secret.

[CommentMonkey]

Looks to me like most of the trade groups either filed amicus briefs arguing in favor of the position taken by the dissent (e.g., the credit union trade organization) or joined the Chamber of Commerce's brief doing the same (e.g., American Bankers Association), albeit acknowledging that the remedy would need to take account of the possibility of destabilization effects. It does not appear that many institutional lenders preferred the result the court reached for fear that the economy would collapse.

But of course the dissent didn't discuss the possibility of a stay, and/or other measures to guard against destabilization, because it was a dissent. Thus it seems quite a stretch to accuse the dissent of trying to nuke the economy.

[loki13]

I am assuming you didn't look very hard.

https://www.scotusblog.com/case-files/cases/consumer-financial-protection-bureau-v-community-financial-services-association-of-america-limited/

It's color coded so you don't have to do much work. I would start with the mortgage brokers.

I am unclear where in the opinion you find any authority for a stay of an unconstitutional authority, although I suppose that the Court could grant a limited stay (in terms of the mandate, etc.) but that wouldn't be nearly enough time. Absent severance or a de facto ruling, which the dissent's reasoning would not support... yep.

But sure, if your quibble is that I should have said that Gorsuch joined a lawless opinion with no legal reasoning behind it because he knew that it wouldn't actually nuke the economy since it was a dissent, so party on, okay.

The actual taking that everyone understands is the same- Gorsuch is a principled textualist, except when he isn't (such as administrative agencies, or, again, when he joined Alito in Ca. v. Texas).

He's just a strange judge given that he is very committed to certain principles most of the time, and then every now and then joins opinions (or drafts some) that have absolutely no coherence to his judicial philosophy.

[David Nieporent]

But I think this particular post is more about his resentment over his not having his brilliance recognized by judges and academics everywhere despite where he went to school.

Dude. This particular post, like every JB post, is about an excuse to use the word "I."

[LawTalkingGuy]

Well. Yeah. But some are more on the nose than others!

[huskerdru]

“It is a myth that federal judges fairly consider every clerkship applicant on an individualized basis.”

This is true 98.42% of the time for every job opening everywhere.

Also, nice job seeming to assume that Judge Wilkinson practically “boycotts” many schools based on a rejection sample size of precisely one.

[bernard11]

But wait.

Ginsburg draws scorn for "boycotting" HBCU's (even though the linked article is about African-American applicants generally, not HBCU's - I guess Josh didn't bother reading it) while others, like Easterbrook, draw praise for their "boycotts," and are defended by Josh.

[Lee Moore]

The upshot is that under his own policy, he would have never hired one of his favorite law clerks.

I recall having to allocate a large and lucrative project when it came in. I had two available potential project managers Mr A and Ms B. Mr A was smart and had an excellent track record. He'd likely do a fine job. Ms B was younger, and had an excellent, if shorter, track record, and was probably a bit smarter yet.

In Mr A's favor - he was a safe pair of hands and he'd get it done without a screw up.

In Ms B's favor, she'd probably do fine, and it was in our interests to give her more experience so she could take on big jobs in the future. Also she had a very engaging personality and might make a big hit with the big customer.

After consulting other heads wiser (obviously) and older than myself, I went for the conservative option and picked Mr A.

About 5 minutes after I'd told Mr A to get right to it, another call came in. It was another equally big, equally lucrative project arriving out of the blue. It took four nanoseconds to assign Ms B, without the smallest worry about the risk. Especially since I didn't have another project manager available.

Both did excellent jobs.

I should mention though, given my views expressed on the Prof Coleman threads that the story ended thus :

Ms B left to have an inaugural baby about a year later and never reappeared. I think she generated four in total, which was a good effort starting at age 30. But all that wonderful talent, plus her newly won experience was lost to the company, and the economy.

[bernard11]

all that wonderful talent, plus her newly won experience was lost to the company, and the economy.

Well, to the company anyway. As to the economy, there is a fairly obvious response, which is left as an exercise for the reader.

[Lee Moore]

All cash flows more than thirty years out are discounted to zero.

[CJColucci]

It is a myth that federal judges fairly consider every clerkship applicant on an individualized basis.

Is it a "myth," or merely a falsehood that almost nobody either believes or asserts? Somebody, indeed, lots of somebodies, thought stories about Zeus were either true or otherwise instructive. Those were "myths." Mere false statements of fact aren't.

[Jokibif0]

Judge Ginsburg refused to hire from the Hasbro Comic Book Universe? Outrageous!!

(It's HBCU, not HCBU.)

[Dilan Esper]

One thing I would mention is that at both Cal State LA and USC, I went to school with some extremely smart people who I would rank right up there with the intellects of Ivy League grads I met, who had to stay in Los Angeles to go to school due to family commitments, having a boyfriend here, or similar sorts of considerations. Or they had to work to pay their way through school. These are the sort of people you miss when you do what Scalia did. (Indeed, I'd be interested in Judge Sutton's story. Ohio State is of course an excellent school, and I'm curious why he went there.)

In other words, I'm really on Justice Thomas' side of this and think this is one area where Thomas really is to be commended. You should want to cast the wide net, rather than just relying on the elite credential.

[loki13]

IME, the very top of the class at lower tier schools (outside of the T14) is just as good as the grads of T14 schools.

That said, the average grad from a T14 school tends to be much more capable than the average grad from lower-tier schools.

In addition, as you move further down to the worst schools, such as the one that JB teaches at, this gets much more pronounced.

Finally, this is a general observation, not an ironclad rule. As always, there will be individual exceptions. I have met grads from T14 schools that could not litigate their way out of a paper bag if you gave them 10 amendments to their complaint and a sharp pair of scissors.

[LawTalkingGuy]

“That said, the average grad from a T14 school tends to be much more capable than the average grad from lower-tier schools.”

The truth of this statement sort of depends on what is meant by “capable” and also “lower tier.”

For capability: are they more capable at what people expect T-14 grads to do? Federal clerkship. big law, senior government roles, academia, prominent non-profits? Probably yes, at least starting out. Capable as in being able to easily fit into any legal role, especially the ones that people commonly actually need? Maybe not!

As for lower tier, what’s the cutoff for where it makes a difference?

[loki13]

General statements are, by definition, general!

T14 is both an actual ranking from US News, as well as a generally understood concept. As a general concept, it has a standard list (which you probably know), and it doesn't include schools in the actual T14 (like UCLA).

As for rankings, they change every year (so US News has a purpose to exist). Does that mean that a Wash U grad suddenly became magically better than a Vandy Law School grad, just because Wash U happened to move from 20 to 16 this year, and Vandy fell back three places to 19? Did Notre Dame, in one year, become that much better than BYU and UF (Notre Dame went from 27 to 20, BYU and UF fell from 22 to 28)?

Naw.

That said, there are certain generalities that I think are true. The "T14" (loosely defined) are national schools and have a massive leg up in terms of clerkships, placement at the best BigLaw firms, placement at the most desirable government positions, and so on, and are incredibly competitive because of that. Tier 1 (1-50, except T14) are generally regional schools, and are competitive placing at regional BigLaw and clerkships, but you have to stand out a lot more in your class to get the best positions.

Once you move out of that and the T100, it continues restricting the options unless you really do well at the school, and the areas you are likely to find a place to more local areas unless you really throw your net out. The exception is, of course, state schools which are a good choice if you want to get connections, practice in that state, or go into local or state politics.

But these are general statements. Every person and situation is different. Especially once you factor in tuition, there is no right choice.

Most importantly, once you've been practicing for a period of time, unless you're on very specific tracks (such as an academic track), no one cares about your school- they care about what you've been doing.

[bernard11]

As an aside, those US News rankings seem pretty bogus to me, especially when they compare two relatively similar schools.

In fact, many of those rankings - best places to live, etc. - are based on arbitrary, subjective, weightings of non-independent variables, whose values are again assigned in a subjective manner.

[loki13]

I don't think that the ranking from a high level are bogus. But they only reflect what people already know. In other words, we are all pretty aware of the difference between a school at 5 and a school that isn't in the top 100.

But yes, the more you zoom in, the less it matters. Does anyone really care (except alums and the administration) about the difference between 55 and 86? No.

Anyway, the reason that any of this matters is that as you move up to the very top schools, the following happens-

1. The inputs tend to get better. The best schools are more selective, and choose the applicants with the highest LSATs and GPAs and, at the very top, can choose between applicants with insanely high GPAs and LSATs.

2. In addition, these schools are considered the most prestigious, so they will attract the "best" faculty. (I am not commenting on whether that means they can teach, but it means that they get to choose who they want).

3. Finally, they already have a bunch of alum in positions that are influential, which can create a feedback loop for initial hiring. And in terms of certain positions (BigLaw, etc.,) there is active recruitment of the students that will not occur at other schools.

[bernard11]

But the judge is not comparing average students, or even above-average ones from different schools.

He is, or should be, comparing the top students from those schools, which is a different problem.

[Rev. Arthur L. Kirkland]

"You should want to cast the wide net"

Wide net? How many people who are not superstitious, bigoted right-wingers does he hire? That he hires from a couple of nonsense-based institutions is no positive attribute.

[Dilan Esper]

He hires from a lot of good schools that are not Harvard and Yale, and you are deliberately mischaracterizing what is going on.

[Rev. Arthur L. Kirkland]

Do you contend he doesn't focus on superstition-addled, bigoted candidates?

Do you contend he doesn't recruit at nonsense-teaching institutions precisely because they are superstition-based, science-suppressing, bigoted, conservative-controlled, academic freedom-flouting, dogma-enforcing schools?

If you don't think that is what is going on, an explanation would be welcome. Do you figure he's in the market for gay agnostics, Muslim women, liberal superstars, or transgender atheists?

[David Nieporent]

I contend you're trolling.

[Rev. Arthur L. Kirkland]

By noting that Justice Thomas hires mostly if not exclusively right-wing bigots with a superstitious streak?

By noting that Justice Thomas hires from conservative, religious schools because that where one is more likely to encounter old-timey, bigoted, superstitious, hard-right clerks?

By noting that this affirmative action for right-wing bigots is funded by taxpayers?

Carry on, clingers. In your case, you're carrying plenty of water for the leaders of this white, male, bigot-embracing, faux libertarian blog.

[Vryedni]

For some reason I continue to take it on faith that you genuinely believe in the cause you profess, yet it surely must have occurred to you by now that your comments are indistinguishable from those one would expect from a belligerent right winger out to parody those views.

[David Nieporent]

By "noting" things that aren't true. Or, to put it more plainly: you're a liar and a bigot. Thomas does no such thing.

[SimonP]

The hiring practices of the conservative justices don't reflect a newfound willingness to look beyond the "T14" as much as they reflect a desire to ideologically sort candidates more efficiently.

I didn't get everything I wanted out of law school either, Josh, but you really don't need to nurse this grudge any longer, do you?

Who keeps rejection emails from more than a decade ago, anyway? Seems to me that Easterbrook and Wilkinson dodged a bullet.

[Rev. Arthur L. Kirkland]

Bingo. It's more difficult in modern America to find old-timey bigots at top schools. More difficult to find people who don't subordinate reason to superstition at top schools. More difficult to find movement conservatives at top schools.

[Balisane]

It's easy to find pro-Palestinian terrorists, delusional black supremacists, and sexual deviants like yourself, however.

[Balisane]

TTT is third tier toilet, not third tier trash.

Guys from my high school used to know correct acronyms all the time, it was no big deal.

[loki13]

Well played, no notes.

[Balisane]

Thank you sir.

[cottonmalone]

I feel like I'm in the Above the Law comments section, circa 2008.

[Balisane]

I was wondering whether anyone would pick up on that. I'm glad to see ATL and XOXOHTH live on.

[Darth Buckeye]

I went to Ohio State Law College of law (none of this THE nonsense for me). Good to know that justices are not all boycotting the non-elite schools.

[Purple Martin]

I never would have guessed!

[Please, Daivd, Seek Help]

This is a pretty bizarre post because it basically relies on the idea that a reader will be convinced by the linguistic jiujitsu employed herein. It is possible to support, oppose, or feel nothing at all about an ideological or political boycott without having to deconstruct the word boycott into meaning any choice that excludes other choices.

There is a distinction between hiring the best students and having them happen to come from some schools and not others; only hiring from the best schools because it's too costly to find the best students at other schools; and boycotting specific schools because of ideological or political considerations. This distinction exists even if you want to gussy up language by calling the former two things "statistical boycotts" or whatever.

[loki13]

Next JB post-

"Hey, did you hear about those conservatives last year that boycotted Bud Light because of the social media promotion with a transgender TikTok personality? Well guess what? I just learned that there are people that don't drink alcohol at all! They aren't just boycotting Bud Light, they are boycotting ALL ALCOHOL! Even worse, there are people, probably Antifa, that don't drink soda. How about that for a boycott? Suck it, libs. "

Just as a reminder- a boycott doesn't mean "I am not choosing this particular thing." I don't "boycott" Taco Bell because I am not fan of their food. A boycott is when you are specifically withholding, withdrawing, or banning something (hiring, buying, etc.) as a punishment or protest.

What is the punishment or protest that Scalia was engaged in, as opposed to just trying to narrow down the pool of applicants? At a certain point, you have to say ... It's like, how much more dumb can a JB post be? And the answer is none. None more dumb.

FYI- one of my favorite fun facts is that "boycott" is actually named for Captain Charles C. Boycott. Look it up.

[LawTalkingGuy]

Josh Blackman: I feel bad for you!

Antonin Scalia: I don't think about you at all.

[loki13]

Josh Blackman reading that ... "Wait ... is it because he's dead?"

JB laughs at every joke three times.

Once when tell it.
Once when you explain it.
And once when he gets it the next day.

[OKSteele]

I loved this one. Beautifully written and splendid logic.

[loki13]

+1. Harshest comment yet.