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U.S. Supreme Court

Justice Scalia Tells Law Student Why She Probably Won’t Be His Law Clerk

Posted May 12, 2009 6:20 AM CST
By Debra Cassens Weiss

U.S. Supreme Court Justice Antonin Scalia was his usual blunt self last month when he responded to a law student’s question on how to become “outrageously successful” despite a lack of connections and elite degrees.

At first, Scalia gave the American University law student some general advice, the New York Times reports. “Just work hard and be very good,” Scalia said.

Then he went on to talk about the student’s chances of obtaining a clerkship with a Supreme Court justice, the story recounts. Her school is ranked 45th in the U.S. News & World Report rankings.

“By and large,” Scalia said during the April 24 law school appearance, “I’m going to be picking from the law schools that basically are the hardest to get into. They admit the best and the brightest, and they may not teach very well, but you can’t make a sow’s ear out of a silk purse. If they come in the best and the brightest, they’re probably going to leave the best and the brightest, OK?”

The story says the data support Scalia’s comment. In the last six years, about half of the Supreme Court’s 220 law clerks attended Yale or Harvard law schools, respectively ranked first and second by U.S. News. About 50 others came from Chicago, Stanford, Virginia and Columbia. None hailed from American University’s Washington College of Law.

Scalia acknowledged there are some exceptions, citing the case of Jeffrey Sutton, now a federal appeals judge on the 6th U.S. Circuit Court of Appeals based in Cincinnati, according to the Times account. Sutton was first hired by Justice Lewis F. Powell Jr., and then worked for Scalia.

“I wouldn’t have hired Jeff Sutton,” Scalia said. “For God’s sake, he went Ohio State! And he’s one of the very best law clerks I ever had.”

The Times story contrasts the low-key approach of retiring Justice David H. Souter with Scalia’s penchant for colorful comments. “In the last couple of weeks, Justice Scalia has explained to a law student why she will probably never serve as a law clerk on the Supreme Court, had an interesting tussle with Justice John Paul Stevens and cited foreign law to boot. May he never retire,” the story says.

Comments

1.

B. McLeod
May 12, 2009 7:16 AM CST

Scalia.  Out of touch.  Who knew?

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2.

J. Bay
May 12, 2009 7:40 AM CST

Comment removed by moderator.

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3.

TN
May 12, 2009 8:19 AM CST

So, according to Scalia…why should anybody ever hire a law grad that didn’t go to a top ten school?  They are obviously going to be failures as lawyers.

perhaps the problem with the SC’s myopia is that it hires the same type of clerks year over year.  Wall Street also hired only the “best and the brightest”  and see how well that has worked out.

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4.

Jim P
May 12, 2009 8:51 AM CST

Did we expect anything else? Most law schools, including mine, have operated on the same model since 1870’s- a near meritocracy. 

However the financial realities of today’s higher education could change judges opinions of other institutions. Law school today is a mortgage on one’s future, and there is no shame in attending a state school or less prestigious university in exchange for cheaper tuition or a scholarship.

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5.

John
May 12, 2009 8:59 AM CST

Didn’t Scalia mean to say “you can’t make a silk purse out of a sow’s ear”?

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6.

Adrian S.
May 12, 2009 9:01 AM CST

He’s assuming that the “best and brightest” would only choose to go to top 10 schools. Considering that many schools that are the top in a given field are not necessarily within the top 10 overall, that’s a stupid assumption to make. Scholarships and tuition can also play a big role in a student’s choice of school, and the smart ones aren’t going to take out loans they’ll never be able to pay back. You’d think after having one of his best law clerks come from a non top 10 school, he’d have learned something. I guess that was also a stupid assumption.

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7.

William Stanley Daniel
May 12, 2009 9:53 AM CST

We graduates of Washington University in St.
Louis regularly defeat in trials the Yale and Harvard lawyers in the City of St. Louis, St. Louis County, and United States District Court for the Eastern District of Missouri in the
Thomas F. Eagleton Federal Courthouse,
The Eastern Elite Myopia is not confined to
a certain Supreme Court Justice and his clerks.

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8.

kennyg
May 12, 2009 9:53 AM CST

Mr. or Ms. Bay,whoever you are, what kind of human being do you consider yourself to be,hoping for death or serious illness to another?

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9.

Matt
May 12, 2009 10:11 AM CST

I love that Fat Tony got the idiom wrong while insulting someone!  You are so smart.

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10.

J.D.
May 12, 2009 10:21 AM CST

Kennyg, obviously you are new here. Calling for the death of a conservative justice (or any conservative)  is acceptable on this site. However, if you suggest that it’s a good thing that Justice Ginsburg may soon die—say, as a means to punish her for advocating the deaths of millions of babies—well, watch out.

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11.

Ken
May 12, 2009 10:28 AM CST

He didn’t get the idiom wrong.  He meant you can’t make crap from quality.  If the school admitted someone THAT good, it wasn’t likely that they would graduate worse than they went in.  (And I didn’t even go to a top tier school!)  Of course, it doesn’t mean that other students aren’t as good, just that the Justices (and major firms) are lazy.  They’re talking about pay cuts without realizing that if they hire from other schools, they could pay reduced salaries.  Idiots.  But if your ambition in going to law school is to clerk for Scalia or bill 2500 hours, you’ve got bigger problems than what school you attended.

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12.

Carolyn Elefant
May 12, 2009 10:35 AM CST

Funny, Scalia didn’t realize that Tom Goldstein, who’s argued around 20 cases before the USSC is from AU Law School.  I’d rather argue 20 cases before the Court than sit behind the scenes as a clerk writing those opinions.

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13.

Christopher
May 12, 2009 10:44 AM CST

Judge Sutton, now there’s a guy who should be on the Supreme Court.  Don’t think Obama will pick him though.

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14.

James
May 12, 2009 10:53 AM CST

He’s right, but you know what.  If I was on SCOTUS or any other court, I’d only recruit from my own school.  The solution to that problem is appoint more candidates from diverse educational backgrounds rather than just the most qualified hispanic female lesbian judge they can find so they can check off the affirmative action points.  ABA did an interesting article a few months back about the lawyers that McCain and Obama were each likely to hire if they got elected.  McCain’s group was from many Tier 1 schools and even one or 2 schools in second tier.  Obama was nearly 100% Harvard, Yale and Columbia.  In addition Bush’s nominee Harriet Miers graduated from SMU law school.

So next time you think that Democrats are about diversity, it’s really just superficial elitism.

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15.

George Patsourakos
May 12, 2009 10:55 AM CST

U.S. Supreme Court Justice Antonin Scalia appears to be narrow-minded with respect to American higher education,  and to human tact as well.  To tell an American University law school student that her chances of obtaining a clerkship with a Supreme Court justice were unrealistic, because “I’m going to be picking from the law schools that basically are the hardest to get into” indicates that Justice Scalia does not realize that it is the abilities, the personality,  and the motivation of the person he would be hiring—not the status of the law school—that would provide him with a stellar clerk. Moreover, the Justice should have been more tactful—and not so blunt and heartless—in answering the law school student’s question. Frankly,  this incredible scenario makes me wonder about Justice Scalia’s competence for being a Supreme Court Justice, because I believe that his answer to the law school student’s question clearly illustrates his personal prejudice and discrimination.

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16.

Frank Pray
May 12, 2009 10:57 AM CST

Welcome to reality, if you already didn’t know.

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17.

Paul the Magyar
May 12, 2009 11:10 AM CST

“Kennyg, obviously you are new here. Calling for the death of a conservative justice (or any conservative)  is acceptable on this site.”

Wrong, J.D.—It is YOU who posts, without exception, slander of non-conservatives as traitors, terrorist-lovers, and fools.  In fact, that is the substance of allyour posts, debasing principle and ideal and touting torture. 

If the discourse has suffered, you can take credit for the trend.  So don’t be surprised.

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18.

Steve
May 12, 2009 11:35 AM CST

I think Scalia’s comments could have come across less elitist if he presented them from the perspective of a (supposedly) busy person.

i.e.  That he’d rather look at Harvard and Yale and know that a higher percentage of those applicants will be considered ‘good enough’ to him, rather than wade through hundreds of T4 applicants try to identify the hidden gem.

That said, for the sake of breaking the Harvard/Yale control of SCOTUS, I do believe that we need more justices from other law schools, and more law clerks from other law schools.

It’s an amusing development that back when the US only had 10 or 20 law schools, SCOTUS justices were from many backgrounds.  But now that there are 200+ law schools, Harvard and Yale have increased their dominance.

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19.

J.D.
May 12, 2009 11:50 AM CST

I’ve never called for violence or for anyone’s death, Paul.

But I certainly critique liberal policies that threaten the lives of millions.

There’s a difference.

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20.

J.D.
May 12, 2009 11:54 AM CST

I know plenty of intelligent people who have graduated from non-top-10 law schools—and many from American University’s law school, in fact.

I also know that plenty of morons get into Harvard/Yale/Chicago not because of their abilities, but rather because daddy made a phone call, or they had a certain physical characteristic beloved by the Left.

It’s very difficult to judge a person based on their law school because admissions offices no longer focus only on ability, character, and intelligence.

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21.

Jessica H.
May 12, 2009 12:00 PM CST

Scalia admits that the schools thought to be at the top do not necessarily teach all that well. 

Does he really not realize that while the “best and the brightest” at the “top” schools are sitting around (on their silk purses) being esoteric, many of the rest of us are surpassing the Yale and Harvard elitists in our knowledge of the law and practical skills?

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22.

Legal Lady
May 12, 2009 12:00 PM CST

I would not assume that Justice Scalia means the “top 10” schools.  Justice Scalia has had at least one law clerk from W&M, which is currently ranked 28th by US News.  Top tier, but not top 10.

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23.

Legal Lady
May 12, 2009 12:04 PM CST

My bad.  That was U/G not law.

That’s what I get for trying to give the benefit of the doubt.  No clue what came over me.

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24.

Daddy
May 12, 2009 5:15 PM CST

J.D. - Which do you find more offensive, the “liberal policies that threaten the lives of millions” or the “conservative” policies that actually take those lives?

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25.

T.Mann
May 12, 2009 6:10 PM CST

Maybe if he would get his head out of the clouds and give some one a fair chance, oh I forgot who I was committing on. Out of touch he is.

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26.

Kate
May 13, 2009 6:37 AM CST

If I could have afforded to take out $200,000 in loans and abandon my full-time job in order to pursue a law degree, I would have applied to an “elite” school. I went to one of the top five liberal arts schools in the country, got pretty good scores my my LSATs, and had solid undergraduate grades.

Unfortunately, part-time programs were the only option for me, as they are for many people balancing families, undergraduate loans and mortgages. I didn’t even try to apply to full-time programs. Georgetown is the only real “elite” school I can think of that has a part-time program.

Maybe someday the upper-crust law firms and top judges will understand that the best and the brightest do not only study at Harvard and Yale. Some of the hardest working future lawyers in this country spend their days at their offices, and their evenings away from their families and children, attending classes four nights a week—sometimes in a city more than an hour away from their house—learning the same materials as the full-time students. Scalia’s comments are disappointing, but a realistic reminder of the meritocracy that still dominates the legal field.

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27.

Jared Hautamaki
May 13, 2009 7:00 AM CST

This is exactly what is wrong with the legal profession.  Diversity of educational experience is equally important as diversity of cultural and racial backgrounds.

Scalia is a failure.

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28.

J.D.
May 13, 2009 8:43 AM CST

Abortion isn’t a conservative policy, Daddy.

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29.

df
May 13, 2009 9:05 AM CST

Based on what I’ve read I don’t particularly like Justice Scalia, but in this case he was being honest. As the stats in the story note every justice seems to hire that way, why should he be criticized for telling the truth?

I do find it interest that he fails to consider that since his best law clerk came from a non-elite school, that maybe he should be looking at some other factors beyond HYS etc. status and what made that clerk special despite being from Ohio state…

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30.

Sara M. Chico
May 13, 2009 9:16 AM CST

It is incredible to read this criteria. There a lot of very intelligent and extraordinary students that not even have the chance nor the desire to study in the top law schools. There is always a group of students who lived some circumstances in their lives that kept them away of being the best in their BA degree, like having to work to be able to support themselves and relatives, but after being in law school or other type of professional schools gave all they have and became excellent professionals. The school you go to is very determinating in your future but your qualities should always go beyond the first.

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31.

B. McLeod
May 13, 2009 6:22 PM CST

All these years, I have been thinking of not going to Harvard as simply missing out on the chance to take a dump in those fancy restrooms.  Now, though, I realize that even beyond all that, I can’t ever be Scalia’s law clerk.  Woe, oh woe is me.  If only I had realized a quarter-century ago that top-ten credentials were the ticket to serving as clerk for this bloated haggis (whereby, I might have been able to help moderate some of his thoughtless public statements), I could have loaded up on all the debt it would have taken to accomplish that.  Had I but known it in time (heavy sigh).

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32.

Rufus
May 13, 2009 7:41 PM CST

I graduated Stanford and was surrounded by some brilliant people. Thus, the experience itself was interesting and rewarding. Fast forward to biglaw, I am surrounded by good lawyers with diplomacy/people skills from 2nd or 3rd tier law schools (my bosses). This seems to be the standard. In that sense biglaw gives a chance to those who can use their legal skills to bring in business or navigate the office politics and get good work and produce good work product. I didn’t last long, in spite of my law school background. What I learned is that law school and biglaw definitely require different skills. Clearly the students in my law school classes were the smartest I had ever met, but in big law, that is just one factor.

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33.

Dick
May 13, 2009 7:46 PM CST

Scalia as usual, arrogant and rude…sometimes generously characterized as “blunt”

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34.

American Law Student
May 15, 2009 1:42 AM CST

As an AU law student who was at that lecture, Scalia admitted that there are bright, intelligent, “Supreme Court” worthy students at schools like AU, but you’d have to sift through the rank and file to get them.  He and the other Justices are simply too lazy to find those people.

Instead, his logic is “you had to have amazing talent to simply get into Harvard, therefore you will retain that intellect throughout regardless of how well you were taught by your professors”. 

If you were the best at what you do/study, then you wouldn’t care about rankings. Take for example one of Harvard Law’s best professors, Elizabeth Warren who is the leading legal expert on lending, credit, bankruptcy and secured transactions. She’s not only written so many books on the topics, but she led the recent TARP taskforce.  Where did she go to law school?? Rutgers - NJ.

Get over the rankings and read something that will actually add value to your lives!

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35.

AU Law Student
May 15, 2009 1:46 AM CST

Oh, and I have a job at BigLaw this summer.  Can’t say that about a lot of my Georgetown/Cornell/GWU law friends are like me. Its not the school, its the person.

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36.

Browning
May 15, 2009 4:42 AM CST

How did Justice Powell find Judge Sutton?  If he could do it, so can the current justices.

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37.

Steve
May 15, 2009 5:13 AM CST

Scalia noted that the top schools do not necessarily teach that well.  Perhaps it’s not the teachers that do not teach, but also the students who do not learn.  I’ve met some logically brilliant lawyers from these schools fail because they can’t put the law into practice.

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38.

Justin
May 15, 2009 6:13 AM CST

Justice Scalia did not mess up the idiom- he reversed it to make a point.  It is normally “you can’t make a silk purse out of a sow’s ear,” which means that you can’t take somebody with no intelligence, credentials, etc. and make them something great.  His idiom tells us that you can’t take someone with great grades, excellent credentials, etc., and make them a crappy lawyer- despite the efforts of the top law schools.

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39.

roscoe
May 15, 2009 6:32 AM CST

Justin has it right. Scalia seems to have body slammed the elitist schools.

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40.

Barbara Res
May 15, 2009 6:36 AM CST

Two words!
Thomas - Harvard.
Long live the everyman

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41.

JME
May 15, 2009 6:53 AM CST

32- law school and law require different skill sets.  And for the rest of it - even most HYS students stand little chance of being an SC clerk.  There are only so many positions, and way to many people trying for them.  Accept that fact. Oh, and, while the economy may be tubing in the big city, out here in the midwest, business is picking up.

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42.

Houston Lawyer
May 15, 2009 6:55 AM CST

Well, I was a summer associate with one of Scalia’s sons, who happened to go to a top tier law school.  I went to a second tier law school.  Of course, his son got an offer at my firm, but I think he turned it down.  He was a very nice guy, but one of the only things I remember about him was that one day in the firm library, he was looking at a case and asked me how to tell where to find a case that was cited in the case he was reading.  I think the citation was to ___ F. Supp. 2d ___ (N.D. Oh ____) or something like that.  After picking my chin up off the floor, I told him to go get that volume of the Federal Supplement, 2d and go to the page cited.  He then asked me what court the case was in.  Really nice guy, though.

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43.

Michigan/Detroit
May 15, 2009 7:04 AM CST

Ha, what a silly rubric for Scalia to depend upon.  I am a graduate of Michigan Engineering, one of the top five in the country when I went there.  The best and the brightest that were admitted can be broken down, roughly, to three groups: 1. Those that were brilliant thinkers; Those that were not so bright, but worked hard at getting grades; and, those that combined both attributes.  I went to U of Detroit for law school, a school with a different “rep.”, perhaps, but still had all three groups.  At any point in time, the best of any law school can discern the necessary issues and arguments presented to the S.C.  Legal reasoning does not require a great law school, and precluding the varied perspective that a bigger pool of candidates would supply is such a shame.

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44.

Mikey
May 15, 2009 7:07 AM CST

I’m sorry, but I’m not seeing the part where Scalia said that people who don’t go to top law schools will never be excellent, successful lawyers.  He’s talking about one very narrow issue, hiring S.Ct. clerks, where sheer intelligence and analytical abilities are and should be most important, not people skills, rain-making, trial tactics, or connecting with a jury (or race, gender, sexual orientation either).  #18 and #34 have it exactly right - he’s just saying that, percentage-wise, he’s got better odds recruiting clerks from the top schools.  It’s harder to go wrong, that’s all.  All you Scalia-haters are just being blinded by your pre-existing bias to find whatever he says offensive, regardless of its truth.

And # 20, J.D., I usually agree with what you’re saying, and I even agree with most of that post, especially the first paragraph, but I think you’re off base on two points.  One, the legacy thing (“daddy making a phone call”) is really largely a relic of the past; I’m not saying that that can *never* make a difference in law school admissions in a close case, but the kid still has to be pretty remarkable to get into a top 10 law school regardless of his last name nowadays.  Second, since you mention it, gotta defend my alma mater, Chicago, at least a little.  May be different now, I don’t really know, but 20 years ago it was still very much a meritocracy; they did not admit based on demographics, purely on record of performance (and had the least diverse student body of top 10 schools because of it).

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45.

john
May 15, 2009 7:12 AM CST

ohh wow you mean there’s classism in the world that one cannot overcome despite his or her best efforts!  I’m going to spend the rest of today contemplating this.

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46.

ruralcounsel
May 15, 2009 7:12 AM CST

“Justice Scalia did not mess up the idiom- he reversed it to make a point. “

Maybe so, but unfortunately, the logic is no longer valid.  Because someone “on top” is statistically more likely to revert to the norm.  I’ve seen my fair share of bright successful people crash and burn.

The inherent assumption that they are at the “top” because they are the “best and brightest”  rather than random chance and LACK of meritocracy is a huge leap of faith. And suggests a certain lack of real world savvy.

I personally like much of Scalia’s work, so I found this rather disappointing.

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47.

Hadley V. Baxendale
May 15, 2009 1:32 PM CST

Scalia may not have been kind but he was right.  He explained the reality (as a Conservative would)  rather than the ideal (as a Liberal would—that everyone has a fair chance at the job). The latter is useless as advice to a law student. He was saying what Professor Rendleman used to say: “The race is not always to the swift, nor the prize to the strong, but that’s where the smart money bets.”  Besides, the job is better suited to academic types (who get top grades from professors, not lawyers).  The best trial and business lawyers don’t have top grades from top tier schools, but the SCOTUS isn’t hiring trial lawyers.  In context, his advice was correct, just not sugar-coated.

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48.

GH
May 15, 2009 2:39 PM CST

Just goes to show, even at the highest level of our judicial system, discrimination and social status still exists.

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49.

coolerinthefog
May 15, 2009 2:55 PM CST

#20 True that “daddy making a phone call” is largely a thing of the past. And true that anyone getting into a top ten has to show exceptional credentials (i.e. stellar LSAT, excellent grades, etc.).

But the persons who might have previously benefited from daddy’s phone call now benefit from extensive and expensive training for the LSAT, private tutors, “application consultants,” etc., which others of equal intelligence may not be able to afford. The applications process for elite law schools is largely a meritocracy, yes, but (typically) you have to have a whole lot behind you just to be able to compete.

#46 - Totally agree. The law student should appreciate Scalia’s truthful, if blunt, response. He’s doing her and others a favor by being honest. Anyone at a tier two school needs as accurate a picture as possible of what is likely in their future. A tier two student hoping for a SCOTUS clerkship should not hold her breath (or even for a BIGLAW job, certainly right out of school, especially if she’s not in the top 5%).

The sooner she understands that, the better. I’ll finish by saying everyone should strive for the best, of course.

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50.

mdw
May 15, 2009 3:29 PM CST

no 28- no, but torture seems to be

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