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Frank Rich, Clarence Thomas, and the Missouri Assistant Attorney General:
In today's New York Times, Frank Rich has a rather nasty essay that purports to catch Justice Thomas misrepresenting his past. The specific example is Justice Thomas's first job out of law school in the Missouri Attorney General's Office. As Justice Thomas tells the story, he couldn't get a job from any law firm despite graduating in the middle of his class from Yale Law School. Law firms assumed he was enrolled in law school only because of affirmative action, so Thomas had to struggle to find a job; he ended up getting only one offer in the Missouri government, thanks to Jack Danforth.

  Rich suggests that Thomas's version of events misrepresents the facts, vivid proof of Thomas's "dubious relationship with the whole truth and nothing but." Rich writes:
This could be seen most vividly on "60 Minutes," when he revisited a parable about the evils of affirmative action that is also a centerpiece of his memoir: his anger about the "tainted" degree he received from Yale Law School. In Mr. Thomas's account, he stuck a 15-cent price sticker on his diploma after potential employers refused to hire him. By his reckoning, a Yale Law graduate admitted through affirmative action, as he was, would automatically be judged inferior to whites with the same degree. The "60 Minutes" correspondent, Steve Kroft, maintained that Mr. Thomas had no choice but to settle for a measly $10,000-a-year job (in 1974 dollars) in Missouri, working for the state's attorney general, John Danforth.

What "60 Minutes" didn't say was that the post was substantial — an assistant attorney general — and that Mr. Danforth was himself a Yale Law graduate. As Mr. Danforth told the story during the 1991 confirmation hearings and in his own book last year, he traveled to New Haven to recruit Mr. Thomas when he was still a third-year law student. That would be before he even received that supposedly worthless degree. Had it not been for Yale taking a chance on him in the first place, in other words, Mr. Thomas would never have had the opportunity to work the Yalie network to jump-start his career and to ascend to the Supreme Court. Mr. Danforth, a senator in 1991, was the prime mover in shepherding the Thomas nomination to its successful conclusion.
  So is Rich correct that Thomas "worked the Yalie network" to get a "substantial" job, that of "Assistant Attorney General," the suggestion being, I gather, that this was the kind of plum position that perhaps only a Yalie could get?

  I don't think so. As I understand it, in Missouri the title "Assistant Attorney General" is the standard job title given to an entry-level attorney hired in the state Attorney General's Office. It's not exactly a common destination for those "work[ing] the Yalie network"; my googling around suggests that most Assistant Attorneys General in Missouri are hired straight from Missouri law schools.

  Perhaps Rich was misled by the fact that in the federal government, the job of Assistant Attorney General is indeed quite a job. It's a Senate-confirmed position, often heading hundreds of attorneys.

  But state governments are different. In many states, that lofty title is given to entry-level lawyers. My sense is that this is the case in Missouri. If you look at the listings of job openings in that office, they are all for the position of Assistant Attorney General.

  I did a little googling around to see what kind of resumes and experience lawyers typically have before being appointed Assistant Attorney General in Missouri. Here are a few bios of attorneys who once held the job, with their law school attended and how long after graduation they were hired: Brundage (Missouri-Columbia, year after graduation), Rebman (Missouri - Kansas City, right after graduation), Ottenad (Wash. U., right after passing bar), Miller (Wash. U., after law school graduation), Glaser (Drake, after 2 years at small firm), Franke (Missouri-KC, right after graduation), Cosgrove (Notre Dame, apparently after short stint at KC firm), Richardson (Missouri, right after graduation), Zito (Missouri-KC, apparently right after law school), Siegel (Wash. U., right after graduation), Spinden (Missouri-KC, apparently right after law school).

  As best I can tell, these individuals who were hired as Assistant AG in Missouri did not have "the opportunity to work the Yalie network to jump-start [their] career[s]." I can find no other Yale graduates who had this job, and for that matter I haven't been able to find anyone who attended an "elite" school either at the undergraduate or graduate level who had it.

  To be clear, I think these sorts of jobs are terrific. I think an entry-level job at a state AG's office is a simply wonderful way to get real legal experience and serve the public. But Rich's suggestion that this was some kind of highly sought-after job among the New Haven set -- and that Thomas never could have had it without affirmative action, because he could only get that job from Yale -- appears to be pretty clearly false. And in case you're wondering about Rich's sarcastic reference to "a measly $10,000-a-year job (in 1974 dollars)," that salary in 1974 translates after inflation into about $41,600 a year today. Kind of a weird way to use that Yalie network, I would think.

  Now, it's very possibly true that if Justice Thomas hadn't gone to Yale, he wouldn't have ended up on the Supreme Court. Only 110 people have served as Justices on the Supreme Court since the first Justices were confirmed in 1789, so random chance necessarily plays the overwhelming role in selecting who gets the job. But Justice Thomas's "parable" concerns his efforts to get a job as a law school graduate in 1974, not his non-effort to get elevated from the DC Circuit to the Supreme Court in 1990. Given that, Rich's argument strikes me as pretty clearly out of line.
Elliot Reed:
Now, it's very possibly true that if Justice Thomas hadn't gone to Yale, he wouldn't have ended up on the Supreme Court.
How about "absolutely certain?" Five of the Justices graduated from Harvard and two from Yale. Justice Ginsburg's degree is from Columbia, but note she transferred there from Harvard. The two Justices who recently left the Court went to Stanford. Only Stevens doesn't fit the pattern.

Thomas might have gotten on the Court if he'd gone to Harvard or Stanford instead of Yale, but if he'd wound up at a merely top-10 school—or, God forbid, a fourth-tier dump like Georgetown or UCLA—there's no way he'd have been appointed.
10.7.2007 10:55am
Rex:
But you seem to be neglecting the other aspects of Rich's point here, one of which is that Danforth recruited Thomas when he was a 3L, thus countering Thomas's position that he struggled to find work after getting his JD. Now it's possible that Thomas was merely compressing the timeline and that his struggle to land a job occurred during the usual law school hiring season, setting the stage for his later acceptance of Danforth's offer. But that would still call into question the visual image of Thomas as a desperate out-of-work YLS grad that his telling seems to convey.

Additionally, Rich talks about the "Yalie network" in part to emphasize how it was this connection to Danforth that helped enable his later nomination to the Court. Even though Rich didn't lay it out explicitly, the idea is that a different person would quite possibly look back at this series of events and think, "man, that first job I had was a major letdown at the time, but it's a good thing it worked out that way given that I likely wouldn't be where I am now without it." I agree Rich erred in characterizing the Missouri AAG position as highly-regarded, but it's still fair to point out that Thomas's view of all this is strange.
10.7.2007 11:03am
GV_:
How did Thomas know that the reason people didn't hire him was because they thought he was not qualified to go to Yale to begin with? I mean, isn't it more likely that they didn't hire him because he was black? That is, no matter which school he went to, I can't imagine many law firms were hiring African Americans. (Thomas didn’t graduate law school that long after the Jim Crow laws had ceased to exist.) This is like students now who claim they couldn’t get into their law school of choice because of affirmative action. The plaintiff in Hopwood is one such example -- UT later proved that she wouldn’t have gotten in even if they didn’t have affirmative action.

I also agree with the thrust of the article: Thomas’s comparison of what happened to him to a lynching is offensive. I also think Orin’s calculation of a 41k salary is a bit misleading. That amount of money is not insubstantial in Missouri. It’s the equivalent to 90k in New York. Also keep in mind that in 1974, law firms were not exactly paying the big bucks to their associates. I suspect, although I don’t have the numbers, that associates in New York were not making that much more than the equivalent of 90k in 1974 (21k).

Finally, to those who think that affirmative action admits less “qualified” people: since Thomas admitted he was admitted to Yale because of affirmative action, if law firms decided to not hire him because he was less qualified, weren’t they right to make that decision? Or did the fact that he graduated in the middle of his class make up for that fact?

Finally, while it is obviously not easy to graduated in the middle of the class at Yale, did anybody else find it shocking that a Supreme Court Justice -- you, supposedly the best of the best of the best -- didn’t graduated at the top of his class?

I also don’t understand his decision to become more conservative because of AA. Isn’t it more likely that conservatives, who generally speaking oppose affirmative action, were the ones who thought he wasn’t qualified, rather than liberals, who are in favor of affirmative action?

I also agree with the thrust of the article: Thomas’s comparison of what happened to him to a lynching is offensive.

Finally, to the conservatives who think that affirmative action admits less “qualified” people: since Thomas admitted he was admitted to Yale because of affirmative action, if law firms decided to not hire him because he was less qualified, weren’t they right to make that decision? Or did the fact that he graduated in the middle of his class make up for that fact?

Finally, while it is obviously not easy to graduated in the middle of the class at Yale, did anybody else find it shocking that a Supreme Court Justice -- you, supposedly the best of the best of the best -- didn’t graduated at the top of his class?
10.7.2007 11:16am
GV_:
Whoa. Sorry for that weird formatting of my post. Orin, please feel free to delete the stuff I posted twice.
10.7.2007 11:17am
LESTER:
You didn't really expect anything else from Rich, did you? He is genetically hard-wired, it seems, to slime anyone or anything not from the left-most edge of the political spectrum. This is especially true of a successful black man who "deigns to think for himself."
10.7.2007 11:21am
SP:
"Finally, while it is obviously not easy to graduated in the middle of the class at Yale, did anybody else find it shocking that a Supreme Court Justice -- you, supposedly the best of the best of the best -- didn’t graduated at the top of his class?"

I look at it this way. There are SC Justices who did much better in school who don't strike me as a good judges. Maybe they know a lot, but they aren't good judges.
10.7.2007 11:24am
DavidBernstein (mail):
GV, Supreme Court nominees are selected to fill whatever political needs a president has at any given time from a large pool of qualified nominees, not to reward the "best of the best," much less to reward people for how they did in law school 20 years earlier. That said, all things equal, I'd put my money on the guy who grew up raised by an illiterate grandfather and speaking the Gullah dialect who is in the middle of his Yale class over the Exeter-Harvard-Yale Law who winds up in the top of his class.
10.7.2007 11:24am
David Matthews (mail):
"That amount of money is not insubstantial in Missouri."

Yes, it is. And especially after investing in a Yale Law School degree. Many community college graduates in Missouri make better than $40,000. And most folks with a bachelor's degree do.

See the map

Around Columbia/Jefferson City (where an assistant state attorney general might live and work), 40,000 is barely the median.
10.7.2007 11:32am
MHodak (mail):
Whether or not Thomas might have ended up a Supreme absent his Yale degree is irrelevant to his point. Thomas was simply asserting that he couldn't get the kind of job a white Yale graduate could expect. Nothing in Rich's article refutes this, or even acknowledges what those expectations might have been at that time. All he does (as is typical for him) is string a bunch of facts together, ascribe intent without evidence, and call it a proof.

I blame our education system for someone like Rich having a platform for such rantings to be taken seriously.
10.7.2007 11:33am
Elliot Reed:
GV, whether you're in the top or middle of your class in law school is based mostly on how well you do in a highly stylized, artificial exam situation that bears so resemblance to an appellate judge's decisionmaking process. The other factor is how much you care about strategically picking your classes based on how good your grades in them will be. It has nothing to do with judicial temperament, fairmindedness, judicial philosophy, substantive political views, or the multitude of other things people want in a judge.
10.7.2007 11:33am
Elliot Reed:
correction: that bears no resemblance to an appellate judge's decisionmaking process.
10.7.2007 11:34am
Ron Hardin (mail) (www):
Just another bad theater review.

``Proved plain fools at last,'' as Pope ends the saga of the theater critic.
10.7.2007 11:37am
Elliot Reed:
How did Thomas know that the reason people didn't hire him was because they thought he was not qualified to go to Yale to begin with? I mean, isn't it more likely that they didn't hire him because he was black?
It doesn't make much sense to me either. If employers had been discounting the value of his degree on the theory that the only factor of significance in a law degree is your ex ante grades and test scores and therefore he was only as qualified as a white candidate who went to a top-15 or top-20 school, he still shouldn't have had much trouble getting a job. Overt racism looks like a much more plausible conclusion.
10.7.2007 11:41am
Mark M:
Justice Thomas' point was that upon finishing in the middle of his class at the best law school in the country he would have expected better options than a single job offer with the state of Missouri. Prof. Kerr points out that MO Assist. AG jobs are currently filled by folks with U of Missouri-KC and Drake on their resume. (And as a MO resident myself, I don't think $42k a year is anything close to special.) If that was my only option upon leaving Yale Law, I'd be pretty ticked off too. I have no idea if that was an affirmative action discount back in 1974, but it's at least a plausible explanation.
10.7.2007 11:42am
MDJD2B (mail):

Finally, while it is obviously not easy to graduated in the middle of the class at Yale, did anybody else find it shocking that a Supreme Court Justice -- you, supposedly the best of the best of the best -- didn’t graduated at the top of his class?


Do you really believe that the grading system at law schools (or any other schools) efficiently sorts people by ability to do a given job? Is it possible, too, that as people mature theyperform better-- or worse-- than grades predeict because of changes in motivation? Justice Robert Jackson, certainly a star,

never attended college. At age 18, he went to work as an apprentice in a Jamestown law office, then attended Albany Law School, in Albany, New York, where he completed one year of the two-year program. During the summer of 1912, Jackson returned to Jamestown and apprenticed for the next year.


(Quote from Wikipedia)

Hugo Black and Earl Warren both attended state law schools and worked themselves up politically before their appointments. The point is that the current situation where all justices attended top 5 law schools probably is not due to the unique ability of these schools to educate people to interpret the law. Tather, it is due the current difficulty in mustering a consensus for confirmation, requiring that the formal qualifications of the candidates be as prestigious as possible.
10.7.2007 11:42am
Dave N (mail):
Two points:

First, since I work for a state Attorney General, I have noticed that my counterparts in other states have different titles. Some are called "Deputy Attorney General;" others are called "Assistant Attorney General," all doing the same job. In my office the Assistant Attorney General is the #2 in the office (after the Attorney General). One state over, like Missouri, the bulk of the attorneys are called Assistant Attorney General, as is apparently the case with Missouri.

Second, as those who have gone through the law school recruiting process know, the key recruiting occurs during the second year. Many students tben have had summer clerkships between their second and third year, and spend the third year knowing they have a job upon graduation. Clarence Thomas was not in that position--and may have felt bitter that despite attending YLS, Missouri AG Jack Danforth was the only one to recruit him, and that was as a 3L.
10.7.2007 11:48am
Montie:

But you seem to be neglecting the other aspects of Rich's point here, one of which is that Danforth recruited Thomas when he was a 3L, thus countering Thomas's position that he struggled to find work after getting his JD. Now it's possible that Thomas was merely compressing the timeline and that his struggle to land a job occurred during the usual law school hiring season, setting the stage for his later acceptance of Danforth's offer.


I don't see how anyone could see this as an inconsistency in Thomas's story. It is quite common for people to receive a job offer very early in the process from their lowest ranked, "safety net" option. If that offer turns out the be their, it is not uncommon to be very disappointed.
10.7.2007 11:56am
MikeinAppalachia:
As for the $10,000 salary comparison, for the 1974 grad class, a BSEE grad in the "middle of the class" from a "good" Big10 or Big8 school would have had a starting salary of about $13,200. An MS Engineering grad would have started at about $14,400. Don't know for sure, but the same grades and degrees from MIT, CalTech, etc. would have probably been somewhat higher. So, a Yale LS grad started at about 30-40% lower.
10.7.2007 11:56am
Montie:
Ooops:


I don't see how anyone could see this as an inconsistency in Thomas's story. It is quite common for people to receive a job offer very early in the process from their lowest ranked, "safety net" option. If that offer turns out the be their only offer, it is not uncommon to be very disappointed.
10.7.2007 12:04pm
Veganovich:
In the current environment, not only do law schools practice affirmative action, but so do law firms. A black Yale Law student, even at the bottom of the class, will get numerous job offers at big firms. Thomas’s experience in the 1970’s, even if true, has no relevance to the current reality. There are many of reasons to oppose affirmative action, but the idea that the black students at Yale Law are disadvantaged by it is not one of them.
10.7.2007 12:13pm
David Sucher (mail) (www):
Was it common in 1974 for law firms to assume that (or to inquire whether) a black prospect was affirmative action? Seems to me to be a threshold question.

If the answer is negative then the sad fact is that Justice Thomas was probably spurned because he was black and/or he simply was not very impressive.

My own recollection is that big firms and companies were scrambling very hard for qualified blacks in the mid-1970s, even if just for show. Of course I may be a few years early and that might make a huge difference. And bear in mind that white shoe firms were bastions of bigotry until very recently and for example didn't start hiring Jews until the late 70s, so far as I understand.
10.7.2007 12:25pm
Michael B (mail):
Frank Rich being Frank Rich: viperous and cattish, with razor-sharp claws. One of the NYT's first-order attack cats.
10.7.2007 12:36pm
sss33:
I'm glad Thomas has the stones to get up and talk about this, even knowing full well that journalistic hacks like Rich are going to try to mutilate his story. If anyone here doesn't think that legal employers - especially those at big firms - don't make assumptions about a student's qualifications based on race and the prospect of affirmative action - you're living in fantasy land. These firms make corporate America look like tolerant charitable humanitarians - what makes you think that these firms wouldn't act as ruthless in hiring as they do in trying to make profit?

One look at any big firm's stat sheet on NALP will confirm two things: (1) their commitment to "diversity" is complete tokenism given the absurd disparity between minority hires and whites, and (2) the token minority hires that these firms do make often end up being, on average, students who are more qualified than the majority of the white students that these firms hire. Put the two together and a very cogent argument can be made for law firms taking affirmative action into account in evaluating what they deem the "qualifications" of minority students. After all, if these firms weren't doing so, you'd think they would be hiring minority students who went to the same types of schools as their white hires, especially given that there should be so much demand for minority students if those who allege that these firms are all about "diversity" are right.

I still think these white shoe firms are bastions of bigotry, and I think Thomas's point went to that. You can't retrain a bigot by instituting affirmative action; the bigot will merely pile affirmative action on top of his reasons to discriminate against someone. American "biglaw" is a classic example of that.
10.7.2007 12:36pm
K T Cat (www):
What makes you think that Frank Rich cares about the facts at all? I'm asking this seriously and not just as a gratuitous snark.
10.7.2007 12:39pm
Phy:
You and Thomas miss the point, and Rich gets it right.

The issue isn't whether Thomas would have been better off had he not been admitted to Yale on affirmative action, but whether Thomas would have been better off admitted to Yale on AA or admitted to a lesser law school without AA. Could he have snagged that law firm job he so coveted coming from a second tier law school instead of Yale? Doubtful. AA might've reduced the value of his Yale degree, but his Yale degree was still more valuable than a lesser law school's degree. AA gave Thomas an absolute advantage, not just a relative one. At LEAST his Yale degree is worth 15 cents, instead of nothing.

For Thomas, snagging that law firm job would have confirmed the value of his Yale degree. Had AA kept working for him, at law firm hiring, at partnership, he would have been quite content to move up each rung of the AA ladder. It's only when AA is pulled away from him that he wants to dismantle the whole edifice that got him where he now sits.

Poor Thomas, forced to apply to Yale, forced to attend, forced to graduate and not transfer, forced to put Yale on his resume, forced to keep his diploma framed and kept in his home, forced to hire Yale law clerks (minorities no less!), forced to write about Yale in his autobiography.

Curse the day Yale admitted him.
10.7.2007 12:48pm
Drake (mail) (www):
I was going to ask the question David Sucher did. Seems to me the relevant comparison is to the CVs of other blacks who were able to get that gig in or around 1974.

BTW, I find KT Cat's "nongratuitous snark" amusing. I assume the phrase means he expects valuable consideration for his contribution? (I'm asking this seriously, and not just as gratuitous snark.)
10.7.2007 12:49pm
frankcross (mail):
Well, what I find interesting is the automatic assumption that Thomas makes that he wasn't hired because of affirmative action. When I was at law school (admittedly some time later), there were blacks who were admitted due to affirmative action and they did fine getting jobs.

Now, I don't know but it would be easy to check how other law school blacks did at the time. But blaming not being hired on "affirmative action" is really no different from blaming it on "racism." It reflects a potential failure to take responsibility for one's own shortcomings. Maybe he was a lousy interview. It seems strange to say that people should take personal responsibility and then whine about how others are to blame for your difficulties.
10.7.2007 12:53pm
Roger Schlafly (www):
[Rich:] Mr. Danforth ... traveled to New Haven to recruit Mr. Thomas when he was still a third-year law student. That would be before he even received that supposedly worthless degree.
If Thomas was offered the job before getting the degree, then that is just more evidence that the degree was worthless.
Had it not been for Yale taking a chance on him in the first place, in other words, Mr. Thomas would never have had the opportunity ... to ascend to the Supreme Court.
Thomas did benefit from some favorable breaks, whether they were driven by affirmative action or something else. It doesn't contradict anything that Thomas said.
10.7.2007 12:57pm
Elliot Reed:
In the current environment, not only do law schools practice affirmative action, but so do law firms. A black Yale Law student, even at the bottom of the class, will get numerous job offers at big firms.
Any law student from Yale, even white students from the bottom of the class, will receive numerous big-firm job offers. The difference between the top and the bottom at Yale is whether or not those offers come from Cravath and Wachtell, or from regular big firms in the middle or bottom half of the big-firm pack.
10.7.2007 12:57pm
M. Simon (mail) (www):
Richard Feynman was reputed to have his IQ tested and came out with a score of 125.

Let us say for the sake of argument Thomas is not the brightest bulb on the block. He does know one important thing The Constitution and he has one important characteristic: to apply it as written (according to his understanding) to Every Case.

I commend you to Raich and Thomas' opinion. Clear, brilliant, and so easy to understand that the man in the street could apply it to the next similar case. Or Kelo.

I like his attitude: to apply the law and make decisions so the man in the street could understand them. The smart can do really complex things. The brilliant can do complex things simply.

Justice Thomas - brilliant.
10.7.2007 1:00pm
Jim at FSU (mail):
Having to start at an entry level prosecution job in the legal backwaters of the rural midwest doesn't sound like a "free ride." In fact, it sounds a lot more like "paying your dues," which is kind of the opposite approach to getting ahead.

I think it isn't too much of a stretch to say that once Thomas distinguished himself as a good lawyer (which appears to have taken nearly a decade of hard work), having Yale on his resume helped him land his EEOC job, which seems to have paved the way for him to eventually become a supreme court justice.
10.7.2007 1:00pm
sss33:
Phy's last comment is pretty scary if you ask me: "At LEAST his Yale degree is worth 15 cents, instead of nothing."

Applying that logic to its fullest extent, that argument is saying that creating a "second tier" admissions system (consisting of lesser standards as affirmative action often is) for blacks is perfectly acceptable, because they "at least" got into Yale instead of going through the same admissions standards as everyone else and ending up at some place "worth less" than Yale. Who cares if we risk creating a stigma against blacks who are admitted to Yale by having weaker admissions standards for them? AT LEAST they got into Yale!

That logic can be used to justify any form of racial discrimination. Why not use that logic back in the days of Plessy v. Ferguson - hey, we throw blacks in the back of the train, but at least they're ON the train! Or how about we tell Rosa Parks the same thing - you have to sit in the back of the bus, but at least you got ON the bus in the first place! You know what the common thread is in both of the aforementioned hypotheticals and Clarence Thomas's argument? That because of the given person's black/minority status, the opportunity that they were supposedly given on an "equal" or "separate but equal" footing was CLEARLY LESS than the opportunity that whites in the same position received.

Thomas's point was that he went to Yale, and assuming that affirmative action was "beneficial" to minorities who got into Yale, he should have had the same opportunities (or even better ones because many of you pro-AA people insist that firms love hiring minority candidates) as the white students at that institution. Yet Thomas didn't. He didn't have the option to go to New York or DC firms. He couldn't even make it to a big market and wound up with a government job in Missouri.

He is not the only minority who has had this experience. Affirmative action may create good feelings of kumbaya and what not inside its proponents, but the reality of its effects is much more harsh than you guys are willing to acknowledge.
10.7.2007 1:01pm
Jim at FSU (mail):

I commend you to Raich and Thomas' opinion. Clear, brilliant, and so easy to understand that the man in the street could apply it to the next similar case. Or Kelo.

I like his attitude: to apply the law and make decisions so the man in the street could understand them. The smart can do really complex things. The brilliant can do complex things simply.


I agree with this and I thought that his Raich dissent was an outstanding opinion. IMO, he was the only person who got the case right.
10.7.2007 1:02pm
GV_:
David Matthews (I’m a big fan, by the way), the numbers you cited to were the median household income -- i.e., it adds up the income of two spouse homes.

Regarding my point that Thomas failed to distinguish himself at Yale. Because of DB’s point, I concede that I was wrong.

One additional point. I think Thomas’s argument in opposition to affirmative action (using his own case as a supposed example) is poor and makes little sense. The argument, as I understand it, goes like this: If we have affirmative action, then people will think that blacks who succeed got it because of affirmative action and not because of merit. Thus, whatever success they achieve will be dismissed as not merit based. But the reason some people think affirmative action allows in people without merit into school is because of conservative framing of the issue (and thanks to some poorly devised affirmative action programs.) As a liberal, I think race could be used as a proxy for diversity of experience and be used in determining who to admit in a large pool of candidates with otherwise similar resumes. Liberals, obviously, have lost that framing debate for the most part. But it seems odd to say because conservatives have won the framing debate, you should abandon the substantive policy -- as opposed to trying to retake the framing debate. It would be like saying because conservatives successfully framed opposing the war in Iraq as being unpatriotic and opposing the troops, we should go ahead and support the war and Iraq instead of trying to properly reframe the issue.
10.7.2007 1:05pm
Pig Bodine:
Only 110 people have served as Justices on the Supreme Court since the first Justices were confirmed in 1789, so random chance necessarily plays the overwhelming role in selecting who gets the job.

Huh? Could you, perhaps, name a single one of those 110 people who was primarily selected for the position of Supreme Court Justice based upon a random draw? That there are other factors in play other than merit or suitability for the job doesn't mean anything like that Justices are chosen by random chance.
10.7.2007 1:11pm
Pantapon Rose (mail):
Rich is a theater critic who was given his column because he was willing to say outrageous and stupid things. Not worth taking seriously.
10.7.2007 1:12pm
jpe (mail):
With the current glut of attorneys and the wild disparities between private and gvt atty salaries, it's understandable that state asst. AG wouldn't be such a sexy job. I wonder, though, if that was always the case, and note that John Ashcroft held that same position after graduating from U. Chicago law school. I'd hazard also that those kinds of positions were like clerkships now: not as good pay, but terrific upside from getting connections.
10.7.2007 1:13pm
Faith1 (mail):
Frank Rich is just like every other liberal--a closet racist who cannot stand when one of their "slaves" wanders off the liberal plantation and refuses to worship their Democratic masters as their great white saviors. Clarence Thomas refused to be called "Toby" so they try to call him Uncle Tom instead.

Liberals are incapable of seeing him as anything but a "black man" who obviously needed AA to get to where he is because in the liberal mind a black man is too weak to do it on his on and needs liberal whitey's help.

Yeah, I'm another African-American man who has had it with the Democrats and the liberals telling me I can't do anything without their help.
10.7.2007 1:17pm
Spartee:
SSS33

Biglaw is not bigoted; the people there hate everyone equally. On second thought, they hate themselves most of all. Why else would they choose to live that way?

Awful life. Simply awful.
10.7.2007 1:17pm
Elliot Reed:
Thomas's point was that he went to Yale, and assuming that affirmative action was "beneficial" to minorities who got into Yale, he should have had the same opportunities (or even better ones because many of you pro-AA people insist that firms love hiring minority candidates) as the white students at that institution. Yet Thomas didn't. He didn't have the option to go to New York or DC firms. He couldn't even make it to a big market and wound up with a government job in Missouri.
The general question of whether or not affirmative action hurts black candidates notwithstanding, the idea that Clarence Thomas's job situation in and immediately after law school was principally due to rational discounting of his degree due to affirmative action is lunacy. Thomas graduated from Yale, the most prestigious law school in the country, in 1974. Some pretty serious racism was clearly alive and well in 1974. Black people had been allowed to vote in the south for less than a decade. Interracial marriage had been legal across the country for only six years. Only three years before, Jacksonville, Mississippi had still been arguing to the Supreme Court that it was perfectly OK to close public facilities to prevent them from being integrated.

Furthermore, even assuming that affirmative action created some kind of rational discounting, that could not plausibly justify treating his degree as worse than that of a white top-20 student. There is no evidence that white top-20 students had anything remotely like Thomas's difficulty getting a prestigious, well-paying job in a large market. And Thomas was somewhere in the middle of the class at Yale, which should have significantly mitigated any discounting of his degree on the grounds that he wasn't as good as other Yale students.

Whatever effect "rationally" discounting Thomas's degree due to affirmative action had, it is very implausible that it was at all significant due to the effects of the racism of the era. Maybe Thomas was also lousy at interviewing or something, but it's hard to believe racism wasn't a large factor in the difficulty he had landing a good job.
10.7.2007 1:18pm
Veganovich:
--- Any law student from Yale, even white students from the bottom of the class, will receive numerous big-firm job offers. The difference between the top and the bottom at Yale is whether or not those offers come from Cravath and Wachtell, or from regular big firms in the middle or bottom half of the big-firm pack. ---

True. I was only commenting on black students because the issue is whether Thomas’s experiences are representative of how affirmative action affects black students at Yale.
10.7.2007 1:23pm
George Tenet Fangirl:
Did firms really start hiring during 2L year in the '70s? I thought that was a more recent development.
10.7.2007 1:30pm
eric (mail):
The idea that an AAG position in a midwestern state that pays just over $41,000 a year is prestiguous is just plain stupid. The cost of living differences between Missouri and New York City does nothing to prove that the job was a great job. By that logic, any job paying over $100,000 in Dallas or Houston is more prestiguous than a $200,000 starting position in NYC.

The only thing the cost of living comparision proves is how expensive NYC is. Prosecutors in fly-over country often start at over $50,000. I attend a fourth tier law school and know fellow students who have offers for over $210,000 in NYC cost of living adjusted dollars.
10.7.2007 1:52pm
DWPittelli (mail) (www):
GV: "the reason some people think affirmative action allows in people without merit into school is because of conservative framing of the issue" (emphasis mine)

Straw man. The reason some people think affirmative action allows minorities with less "merit" (i.e., weaker grades and scores) into school is because it is demonstrably true.
10.7.2007 1:53pm
wb (mail):
Just a point about the salary. At that time $10 - $12k /year was what Yale was paying its entry level junior faculty.
10.7.2007 1:56pm
wm13:
People should not, as some of the commentators seem to be doing, confuse the hiring situation for newly-minted JDs now with that in 1974. The Amlaw 100 firms (aka "Biglaw" or "going rate" firms) have expanded dramatically since 1974, such that the entire class at Yale, and most of the class at the other top 14 schools, can get jobs at those firms. That wasn't true in 1974. Also, the huge firms of today are associate-churning machines, and simply can't make much in the way of individualized decisions when they are taking starting classes of 50 associates in NYC, and over 100 nationally. I suspect that what happened to Thomas was (i) his grades weren't good enough for Davis Polk, Cravath etc., (ii) therefore, his universe of choices was limited to mid-size, mid-level firms (e.g., Rosenman Colin or Breed Abbott), and (iii) firms at that level, in those days, had entering classes of only a half dozen associates, and didn't want to take a chance on someone with an unusual background, and, possibly, a "tainted" diploma.
10.7.2007 2:03pm
Barry Youngerman (mail):
Unlike Thomas, today's AA-admitted law students can expect to be offered AA-reserved job slots, even at the most prestigious employers.

However, this situation might only compound the damage that the AA system can inflict on the self confidence of minority individuals. It surely complicates the efforts of their colleagues in the workplace to judge them fairly.

This is the loudest complaint of Thomas and of the other minority individuals who oppose AA as now practiced, in which individuals are pushed one rung up the ladder solely on grounds of race or other accidents of birth.

One might acknowledge the point and still support AA on balance, but anyone who honestly wants to improve race relations must confront this issue.

It is hard for me to believe that those who publicly attack Thomas for raising this simple and important point genuinely care about real live people--black, white, or otherwise. They should stop waving their flags and sit down to a quiet, honest talk with a cross section of American students and workers of good will.
10.7.2007 2:06pm
The Editors, American Federalist Journal (mail) (www):
GV:

But the reason some people think affirmative action allows in people without merit into school is because of conservative framing of the issue...


AA lets in less qualified people based on skin color (Many of whom, it must be noted, flunk out and never receive any degree). That is fact, not framing.

It would be like saying because conservatives successfully framed opposing the war in Iraq as being unpatriotic and opposing the troops...


But conservatives have not as a rule framed opposition to the war as lack of patriotism. This is just another left-wing urban legend. On the other hand, there are many examples of prominent liberals/Democrats questioning the patriotism of conservatives/Republicans. It's called projection.
10.7.2007 2:19pm
Pig Bodine:
The idea that an AAG position in a midwestern state that pays just over $41,000 a year is prestiguous is just plain stupid. The cost of living differences between Missouri and New York City does nothing to prove that the job was a great job.

I thought Thomas' claim was that, because of AA, he could get no job after law school (and that his YLS diploma was, therefore, only worth fifteen cents), not that he couldn't get a sufficiently prestigious job.
10.7.2007 2:24pm
The Editors, American Federalist Journal (mail) (www):

Thomas graduated from Yale, the most prestigious law school in the country, in 1974. Some pretty serious racism was clearly alive and well in 1974. Black people had been allowed to vote in the south for less than a decade. Interracial marriage had been legal across the country for only six years. Only three years before, Jacksonville, Mississippi had still been arguing to the Supreme Court that it was perfectly OK to close public facilities to prevent them from being integrated.


And yet he was hired by a white Republican in Missouri, after facing rejection from all the limousine liberals in NYC.
10.7.2007 2:29pm
GV_:
The Editors, American Federalist Journal, the hidden assumption in your argument that AA lets in less qualified people is that you define qualifications as grades. (DWPittelli’s post is a perfect example of this.) But that simply begs the question of what the proper qualifications we should be looking at are, as DB rightly took me to task for assuming. Lets say you have a person with a 172 LSAT and 3.95 GPA. Is that person “more qualified” than somebody with a 171 LSAT and 3.90 GPA? You seem to assume yes, but as others have noted here, differences in GPA and LSAT can be attributed to lots of things. But having a lower scores does not make the person less qualified unless you simply define qualified as having the proper test scores. I don’t have a problem with admitting in the 171 LSAT person if they are black over the 172 LSAT person if they are white because of race as both a proxy for diversity of experience and because there is still racism today.

But this is all irrelevant to Thomas’s stigma argument. He is not arguing that blacks are in fact less qualified -- indeed, he (rightly) assumes he was qualified to be at Yale despite being there because of AA. Instead, Thomas’s argument is that blacks are viewed as less qualified (regardless of the truth of that assertion) and so we should not have affirmative action because it hurts black people. So arguing whether or not the framing is correct is not relevant to Thomas’s point. Don’t confuse why you oppose affirmative action with Thomas’s argument.
10.7.2007 2:50pm
David Sucher (mail) (www):
Characterizing the WASP men who ran the white shoe firms of Wall Street in 1974 "limousine liberals" seems a bit of a stretch.
10.7.2007 2:57pm
Montie:

I thought Thomas' claim was that, because of AA, he could get no job after law school (and that his YLS diploma was, therefore, only worth fifteen cents), not that he couldn't get a sufficiently prestigious job.


I must admit that I have not read the book or seen Thomas tell the story in an interview. However, I would point out that even Rich does not characterize Thomas's statements that way.
10.7.2007 3:00pm
FormerYalie:
"But you seem to be neglecting the other aspects of Rich's point here, one of which is that Danforth recruited Thomas when he was a 3L, thus countering Thomas's position that he struggled to find work"

Rich's point, and this weak attempt to justify it, are both completely undercut by the way the recruiting process at top-tier schools actually works. Nearly everyone at YLS has a job lined up early in their second year. Interviewing for an entry-level government job in the midwest during one's 3L year is certainly consistent with Justice Thomas' position.
10.7.2007 3:05pm
Byron00:

But the reason some people think affirmative action allows in people without merit into school is because of conservative framing of the issue (and thanks to some poorly devised affirmative action programs.) As a liberal, I think race could be used as a proxy for diversity of experience and be used in determining who to admit in a large pool of candidates with otherwise similar resumes.


This liberal framing presupposes a form of affirmative action that is rarely found in the real world. AA programs as they developed became vehicles for discounting the dissimilarity of resumes. By doing that, they made race a more salient consideration, not a less salient one.

Before the advent of affirmative action, I once had surgery where my surgeon and anesthesiologist were both black; I didn't think twice about that, because I assumed they had the same abilities and training as doctors of any race. That assumption made their race irrelevant. Unfortunately, the usual forms of affirmative action invalidate that assumption, and make race a proxy for a lower level of ability and training. That has the effect of discounting the AA beneficiary's degree in exactly the way Thomas describes.
10.7.2007 3:06pm
Michael B (mail):
"Thomas’s argument is that blacks are viewed as less qualified (regardless of the truth of that assertion) and so we should not have affirmative action because it hurts black people. So arguing whether or not the framing is correct is not relevant to Thomas’s point. Don’t confuse why you oppose affirmative action with Thomas’s argument." GV_

One aspect of Thomas's argument has been that AA recipients - prominently including black AA recipients - are commonly - and sometimes rightly - perceived as less qualified. But that is merely one aspect, and not obviously the most prominent aspect, of Thomas's - and others' - set of arguments. Don't confuse assumptions and narrow perceptions with the broader and more complex realities.
10.7.2007 3:11pm
The Editors, American Federalist Journal (mail) (www):
GV:

...you define qualifications as grades...


In fact, I didn't even mention grades. Your hypothetical of two people with roughly identical LSAT and GPA numbers is not the reality. Grades and test scores are valid measures, but probably the best indicator is the huge disparity in dropout rates. A degree from a 2nd or 3rd tier school is certainly better than flunking out of a top-tier school. Proponents of AA seem to routinely ignore that critical measurement.


So arguing whether or not the framing is correct is not relevant to Thomas’s point. Don’t confuse why you oppose affirmative action with Thomas’s argument.


But I wasn't directly addressing Thomas' argument in my previous comment, I was merely correcting your factual errors.
10.7.2007 3:13pm
Tony Tutins (mail):
The LSAT is an aptitude test, nothing more. Performance in law school is the real standard. Further, the LSAT's predictive power has been lessened by Kaplan, Testmasters, Powerscore and other training classes which can raise students' scores substantially without, apparently, making them smarter. Those too poor or too naive to know how to raise their scores are thus disadvantaged. Back in Clarence Thomas's day, students who could have done well in law school were disadvantaged by the sections of the LSAT which tested people using legal concepts, which lowered the scores of people with no familiarity with the law.

A better predictor is students' performance in undergraduate school. Clarence Thomas demonstrated he was a good student by graduating with honors from Holy Cross.

A couple of other thoughts: People tend to hire people who remind them of themselves, who they feel comfortable, with, which means outsiders have a hard time breaking in. As another example, despite having served on the Stanford Law Review, Sandra Day O'Connor could not get a firm job, and had to start as a Deputy County Attorney for San Mateo, California.

Finally, I would have loved to have a graduate of a "lesser" law school, like SMU's Harriet Miers, on the Supreme Court
10.7.2007 3:16pm
Pig Bodine:
Unfortunately, the usual forms of affirmative action invalidate that assumption, and make race a proxy for a lower level of ability and training.

On what are you basing the claim that affirmative action admissions imply lower levels of ability or training among graduates? Absent evidence that schools are systematically lowering their degree requirements for those admitted under affirmative action, doesn't your claim really amount to affirmative action serving as a proxy for racism -- i.e., if we can't any longer say that otherwise qualified members of a racial minority are not good enough because they are members of a racial minority, we can still say that otherwise qualified members of a racial minority are not good enough because they were admitted under affirmative action?
10.7.2007 3:32pm
Laura S.:
I continue to find it amazing people's willingness to ream this man: demean his integrity, demean his character, ignore his perspective.

I am also surprised that the bump in popularity that Thomas got after his interview demanded such a swift counterattack.

But I guess the attack is political isn't it? The left-wing has been ginning up the story for years about nutso-Thomas supposedly appointed to the bench despite being an idiot, supposedly appointed to the bench despite being a liar.

For shame.
10.7.2007 3:35pm
Pig Bodine:
A degree from a 2nd or 3rd tier school is certainly better than flunking out of a top-tier school.

i) If underachieving students admitted under AA are being failed out of top-tier schools, then what is the basis for claiming that those admitted under AA who do not flunk out are still not as qualified as non-AA graduates?

ii) If a student admitted under AA flunks out, is that the fault of the school for giving the student a chance in the first place? Certainly you can make a case for AA admittees being informed prior to committing that they may be under-prepared and may face a difficult time pursuing a degree at a top-tier school; but it seems that, beyond that, the success or failure of the student depends mostly on the student, not on the admissions committee.
10.7.2007 3:43pm
Phy:
sss33 and Barry Youngerman:

The problem with Thomas's (and presumable your) position is this: He doesn't object to the benefits of AA (getting into Yale; nominated to the Supreme Court), he just objects to the stigma of AA (discounted Yale degree; view that he's not as smart as the other SC justices). But Thomas would be the first one to argue that once he got there, he proved he belonged: he merited his law degree(having done better than half of his classmates) and he deserves to remain on the Court (having written opinions that his colleagues have signed on to). Thomas has weighed the stigma against the benefits of AA and has determined that the benefits outweigh the stigma. Yet, Thomas would use the stigma of AA as an argument to deny the benefits of AA to all others. That is fine, if only Thomas would lead by example - if he renounced the benefits of AA that he has enjoyed by return his Yale diploma and resigning from the Court. Why doesn't he? Because AA worked -- he has proven that he belonged (even though he needed AA to get in the door).
10.7.2007 3:47pm
Fat Man (mail):
I graduated from law school in 1975, and went to work for what was then regarded as a big law firm (145 lawyers) in Manhattan. I started at $19,000/yr, and was bumped up to $21,000/yr in January of 1976. Probably a majority of Justice Thomas's classmates were making about 2X what he was in 1974.

On the AAG title, it is an entry level title here in Ohio as well. It is true that AAG is a higher up at Justice in DC, but Assistant U.S. Attorney is an entry level title in the hinterlands.
10.7.2007 3:55pm
Lew:
Somebody made the point earlier that Thomas' issues may have stemmed from being a poor interviewer. This sounds entirely plausible and it is a common problem.

While in grad school years ago at a prestigious private US university, the head of HR for a prestigious global consulting firm told me a story about a classmate. He had rejected the classmate's application for a job, as had all other firms the preceeding year. My classmate spent her summer practicing interviewing with great success and easily obtained offers from many firms the following year, including McKinsey &Co. Ironically, as the story goes, she rejected Deloitte to take the McKinsey offer. Deloitte could have had her without competition if it could have seen past her poor interviewing skills the year before, but they preferred to hire a good interviewer rather than a good employee.

It is easily conceivable that Thomas' poor interviewing skill resulted in an unsuccessful job search. Occam's razor?
10.7.2007 3:58pm
StatsGuy:

Certainly you can make a case for AA admittees being informed prior to committing that they may be under-prepared and may face a difficult time pursuing a degree at a top-tier school


I would say that Universities have a moral obligation to make that clear to AA admittees. However, it might against their short term incentives to do so. Would a student would rather go to a school that is honest or one that massages the student's ego?
10.7.2007 3:59pm
Elliot123 (mail):
GV: "Isn’t it more likely that conservatives, who generally speaking oppose affirmative action, were the ones who thought he wasn’t qualified, rather than liberals, who are in favor of affirmative action?"

Liberals aren't any more foolish with their own money than conservatives are. That only happens with other people's money.
10.7.2007 4:28pm
Charlie (Colorado) (mail):

Could you, perhaps, name a single one of those 110 people who was primarily selected for the position of Supreme Court Justice based upon a random draw?


No, you ninny, there've only been 110 Justices total, out of the many thousands (tens of thousands?) of lawyers, even among those with elite law degrees. Getting to the point where you become a Justice has clear aspects of randomness --- did you get cancer or get hit by a car? Was your political party in control at the time a nomination came up (would Ruth Ginsberg have been nominated if we'd have had eight more years of Republican administrations in place of Clinton?) Did you make a damnfool mistake, like accepting a special prosecutor appointment? He's not saying that Justices are seelcted by lottery, he's pointing out that its in part of matter of luck to be in a position to be nominated.
10.7.2007 4:36pm
Charlie (Colorado) (mail):
Just by way of comparison, I got my first job as a programmer in Feb 1975, for $12,000 p.a., without even a BA. $10,000 for a Yale lawyer seems pretty picayune.
10.7.2007 4:40pm
The Monster (mail):
Far worse than disadvantaging those minority students who are good enough to graduate Yale Law is what AA does to those who can't cut the mustard there and don't graduate. Meanwhile, equally-qualified white students who aren't even admitted to Yale are good enough to graduate from UMKC or WU, and happily get that low-end job with the MOAG that Thomas had to settle for.

How many white engineering graduates of UM-Rolla or Kansas State were less qualified as HS seniors than minorities invited to fail at MIT or Caltech?
10.7.2007 4:41pm
postroad (mail) (www):


What does stand out in this mess is that both Lawyer Hill and Lawyer Thomas are (1) Yale grads, (2) black. And one of them is still telling a big lie 16 years later. Which one? I do not know. Glad neither one, or at least the liar, not being a sworn witness at a trial.
10.7.2007 4:45pm
Pig Bodine:
He's not saying that Justices are seelcted by lottery, he's pointing out that its in part of matter of luck to be in a position to be nominated.

Which is a damn sight different than the claim that "random chance necessarily plays the overwhelming role in selecting who gets the job." Beyond that, luck playing a part is no different than in the getting of the vast majority of jobs, nor do some of the "luck" factors you present qualify as random events.
10.7.2007 4:51pm
Elliot123 (mail):
Phy: "The issue isn't whether Thomas would have been better off had he not been admitted to Yale on affirmative action, but whether Thomas would have been better off admitted to Yale on AA or admitted to a lesser law school without AA."

I've always held minority applicants should be given the option of AA consideration or simply being part of the non-AA pool. Then then transcript and degree could prominently display NON-AA for those who choose to compete head-to-head with everybody else. They deserve that chance. They have earned it.
10.7.2007 4:58pm
OrinKerr:
Pig Bodine,

I'm very interested to hear what you think leads to someone becoming a Supreme Court Justice other than luck. In the last 20 years or so, there are really two parts to becoming a Supreme Court Justice. The first and (by far) the hardest part is becoming a federal court of appeals judge, a position conferred on about 10 individuals per year nationwide, and, realistically speaking, getting that job at a quite young age (perhaps 2-3 individuals per year nationwide). The second is being the one federal court of appeals that the President wants to nominate. I'm very interested to hear what qualities you think determine which people get that. Do you see it as a meritocracy, in which the best and brightest are chosen?
10.7.2007 5:04pm
OrinKerr:
Oh, and when I say that luck is the overwhelming factor, I should make clear that there are many things beyond luck that one should do to increase one's chances of becoming a Supreme Court Justice. I recommend attending law school, for example, as it is quite rare for someone to become a Justice without having a law degree. I also recommend exercising, so as to stay healthy. Being politically active is quite helpful, as well.
10.7.2007 5:08pm
Pig Bodine:
You go first.

You made the claim that random chance necessarily plays the overwhelming role, yet you have offered neither evidence to support that claim nor that the factors that you have subsequently mentioned are random events.
10.7.2007 5:16pm
Pig Bodine:
Then then transcript and degree could prominently display NON-AA for those who choose to compete head-to-head with everybody else.

They do not compete head-to-head after they are admitted?
10.7.2007 5:18pm
Joanne Jacobs (www):
I interviewed Clarence Thomas years ago when he was head of the EEOC. He was very articulate and forceful.

My daughter is starting her second year of law school at a top school. She's received several job offers for next summer; summer hires are offered permanent jobs unless they screw up badly. So she'll be set with a post-graduation job long before graduation. Starting salaries at firms in New York, San Francisco, Chicago and a few other cities are now running $160,000 a year for grads of top law schools. She said it doesn't matter whether you're in the top, middle or bottom of the class. Students at second-tier law schools do need high class rank to be considered at big firms; the rest go to small firms or to government jobs, which pay much less.
10.7.2007 5:19pm
Truth Seeker:
I know it's become a cliché that the NYT is biased but have they given up all pretense? Are opinion pieces exempt from fact checking? Is their only goal to preach to the chior?

To say that Missouri job was a plum is BS. I went to U of Illinois next to Missouri in the late 70s and such a job would be a bottom choice for anyone in my school. For a Yalie, it must have really hurt. I personally would have rather moved back in with my parents and hang out a shingle than move to Missouri for an AG job.

As I remember it, the preference for jobs was:

1. Big firm big city
2. Small firm big city
3. Corporate job big city
4. Any firm small city
5. Corporate job small city
6. Private practice if you could afford it
7. Atty Gen in state
8. State atty. in state
9. Public defender in state
10. Atty Gen out of state
11. State atty. out of state
12. Public defender out of state

Is it similar today?
10.7.2007 5:37pm
David M. Nieporent (www):
Hey, at least Frank Rich doesn't suggest, as the Times did in an editorial on Friday, that this book means that Thomas should recuse himself from all cases before the Supreme Court.
10.7.2007 5:41pm
Beem:
Ah, there's nothing like a VC sacred cow to drum up the histrionics.

I'd like second Pig Bodine's point above. That ascending to the Supreme Court is something very hard to do does not make the process random, a idea so ludicrous I'm surprised Orin has the stones to pretend otherwise. I'd be fascinated for Orin to expand on this amazing idea, in a non-facetious manner for a change.

Whatever info Orin Kerr has posted, the fact remains that Thomas's first job was not crap, and it later become incredibly beneficial in giving him the political connections and patronage necessary to be nominated for a SC opening. The wah-wah sob story is rather dubious and unbecoming, but is to be expected for someone like Thomas.
10.7.2007 5:42pm
Elliot123 (mail):
Pig: "They do not compete head-to-head after they are admitted?"

Yes. But why put off the moment when they start to compete head-to-head? An employer looking at a prospect with NON-AA on both undergraduate degree and graduate degree will see someone who is not afraid of competition and has the character to face it. That's valuable information about a person.
10.7.2007 5:51pm
Point of Fact (mail):
No, the preference is not the same. If you actually want trial experience on high quality cases, government is better than small firm or private practice work. A state AG's job, like Thomas had, is a great job.
10.7.2007 6:08pm
Point of Fact (mail):
An employer looking at a prospect with NON-AA on both undergraduate degree and graduate degree will see someone who is not afraid of competition and has the character to face it.

I doubt this. I mean, people see Exeter on a resume and discount the person's grades ("Rich kid who had tutors"). You're assuming everyone has the same attitudes toward everything.
10.7.2007 6:10pm
David M. Nieporent (www):
Whatever info Orin Kerr has posted, the fact remains that Thomas's first job was not crap, and it later become incredibly beneficial in giving him the political connections and patronage necessary to be nominated for a SC opening. The wah-wah sob story is rather dubious and unbecoming, but is to be expected for someone like Thomas.
Hey, by that logic, Jim Crow was great for Thurgood Marshall. Without it, he'd never have made it to the Court.

I'd be fascinated for Orin to expand on this amazing idea, in a non-facetious manner for a change.
I don't believe you; I don't think you'd be "fascinated" at all. I think that, because your arguments against Thomas are so bankrupt, you're deliberately interpreting Orin's statement in an incredibly stupid way (*) so that you can deflect attention from that fact.

It's not "hard" to get on the Court. It's "hard" to get a job with Cravath. You have to be smart and put in a ton of work to get it. But there's nothing you can "do" to get on the Supreme Court. You have to be in the right place at the right time, and you have zero control over that. The window of opportunity comes once or twice in your life, and if you're not there, tough for you. For instance, if Thurgood Marshall's health had forced him off the court a year earlier, Thomas wouldn't have been on the Circuit Court at the time, and couldn't/wouldn't have been nominated. That's luck. It's not literally "random," but it's luck. If Marshall had managed to hang on for one more year, it's likely, with Bush trailing so badly in the polls, that Bush wouldn't have been able to get anyone -- let alone Thomas -- on the Court; had he managed to hang on for a year and a half, Clinton would have been president and Thomas certainly wouldn't have been nominated. All luck. The next Court opening under a GOP president wouldn't have been for fifteen years, at which point he might have been bypassed for someone younger. All luck. Not something under his control, not unless he arranged to tamper with the brakes on Thurgood Marshall's car at the right time.


(*) Note that I'm giving you the benefit of the doubt by assuming it's deliberate.
10.7.2007 6:17pm
Michael B (mail):
"You're assuming everyone has the same attitudes toward everything." Point of Fact

Similar to your assumption about employers, about "people"?
10.7.2007 6:18pm
The Editors, American Federalist Journal (mail) (www):

i) If underachieving students admitted under AA are being failed out of top-tier schools, then what is the basis for claiming that those admitted under AA who do not flunk out are still not as qualified as non-AA graduates?


The answer to the question should be obvious: it is quite possible to under-perform without flunking out.

But the question is absurd. You could just as well say, "The Texas Rangers were the best team in their division this year (if you don't count all the games they lost)."
10.7.2007 6:37pm
Elliot123 (mail):
point of Fact: "You're assuming everyone has the same attitudes toward everything."

I'm actually presuming the opposite. I see a variety of attitudes. I'd like to see the kid with the competitive attitude who wants to go head-to-head with the best in the admissions compeition have the opportunity to do just that. I realize others have the attitude that the kid should be denied that opportunity because of his skin color.
10.7.2007 6:42pm
OrinKerr:
Pig Bodine writes: "You go first." Adding to that, Beem writes:
I'd like second Pig Bodine's point above. That ascending to the Supreme Court is something very hard to do does not make the process random, a idea so ludicrous I'm surprised Orin has the stones to pretend otherwise. I'd be fascinated for Orin to expand on this amazing idea, in a non-facetious manner for a change.
What a puzzling combination of comments.

To start with Pig Bodine, I believe I have gone first, actually. I said that I think luck is the reason why someone is appointed. You objected on the ground that this was false. When I asked you what you think it is beyond luck, your response was "You go first." But I believe I did go first; I said it was about luck. Oh well.

Moving to the case for the job being mostly about luck, I have 9 names:

Roberts
Alito
Ginsburg
Breyer
Stevens
Scalia
Kennedy
Thomas
Souter

For each one of these, there are maybe 1000 lawyers equally smart who could have been in the same position they were in. This group of 9 is notable mostly for having lightning strike that let them get federal appellate jobs at a young age. There was an opening, a supportive Senator or two, they had the right set of views, and then they all had random connections with the judge-pickers or others influential with them that led them to get the nod for the court of appeals (e.g., Reagan getting AMK on the Ninth; Alito going from OLC to the USAO to the CA3, etc.). They all then had tremendous strokes of luck to get on the Court, both in terms of random events (Miers falling through with Alito, etc., Ginsburg gets the first pick in the Clinton years because Arnold'd medical record was too troubling, Breyer was recovering from a bike accident, etc.) and random connections (Stevens was close with AG Levi, who is AG only because of Watergate, and Levi recommends him to Ford).

True, many of these Justices were credentialed, but those credentials were about luck, too. Take the job of Supreme Court law clerk, something that three Justices (Roberts, Breyer, Stevens) had and that people often discuss as being about merit. That job doesn't go to the smartest 36 law school graduates in the country. There are probably 500 graduates who could do the job just as well or better than the 36 that are picked. But they are the 36 lucky ones, who lucked out in terms of connections, or first year grades, or the right choice of law school, or whatever it was that put them on the "short list" for such a job.

In any event, I have a feeling you're not going to respond to my inquiry about what you think makes someone a Supreme Court Justice. That's unfortunate; I can't really understand why you disagree with me, or why you seem to think I am trying to argue in bad faith. Quite puzzling, really, but I guess that's what happens with anonymous comments. I'm curious, are you new here? We usually aim for more sophisticated and thoughtful comments than what you have been writing, whether from the left or the right.
10.7.2007 6:47pm
Michael B (mail):
The NYT's and Frank Rich's (a financially privileged white guy, including a Harvard education) obsessively low focus on Thomas is telling from any number of perspectives. One such follows and even if it does lead to an aside it is an aside that nonetheless reflects the MSM's editorial selectivity - and conscience - together with the consequences stemming from that selectivity such that editorial elisions and occlusions become critical elisions related to a broader societal conscience.

In direct contrast to the rabidly low focus on Thomas (his book is little more than pretext), the on-going Al Durah Affair - perhaps the most egregious and, in effect, malevolent misuse of MSM power in the last three decades and more - receives virtually no commentary in the NYT, and little elsewhere in the MSM. Of course Dreyfus took over a decade to resolve, but if society waits for the NYT and other centers of raw media power to better adjust their priorities before the Al Durah Affair is properly resolved we're likely to wait an eternity.

And yes, raw power mongering is an apposite conception applied to the MSM here, as elsewhere. It's additionally telling that there are exceedingly few Zolas in the present context vis-a-vis L'Affaire Al-Durah - it's likewise telling that these Zolas receive scant press and very nearly no in-depth reporting and commentary. This is the type of thing that flys under the radar when ideologically and politically based obsessive/compulsive disorders are directed at things like absurdly tendentious attitudes and narratives concerning Thomas, BDS, etc. Priorities. A conscience, whether at an individual level or at a societal level, can abide only so many assaults before it succombs to apathy, incoherence and other disorders.
10.7.2007 7:23pm
Pig Bodine:
The answer to the question should be obvious: it is quite possible to under-perform without flunking out.

Where is your evidence that top-tier law schools are graduating students, admitted under AA, who do not perform up to standards?
10.7.2007 7:36pm
OrinKerr:
Pig Bodine,

I see you're still in the comment threads, so I just want to point out my long response to you posted about an hour ago; I worry that you may have missed it. I look forward to your response.

Best,
Orin Kerr
10.7.2007 7:50pm
Pig Bodine:
Pardon me, Orin, for not being sophisticated and thoughtful enough to have realized that when you wrote an unsubstantiated assertion that random chance necessarily plays the overwhelming role in selecting who gets the job of Supreme Court Justice what you were really writing was a well-made and supported argument that "luck" is the reason why someone is appointed. To unsophisticated, unthoughtful persons like myself, random chance is not synonymous with being the beneficiary of something that was outside of one's control; and overwhelming role would tend to mean that random chance actually eliminated most constitutionally eligible persons, not that something outside the control of an already non-randomly selected few played some role in discriminating among this tiny minority. Neither am I used to considering political connections, grades, and non-random choices to be matters of luck. I'll try not to be such a rube in the future, but I'm afraid I'll still remain confused as to how my requesting examples and explanation of how random chance played the overwhelming role in selecting 110 Justices became an offer or obligation to examine what factors govern the selection of a Supreme Court Justice.
10.7.2007 8:05pm
Beem:
Orin, my sense of your argument is that, since an SC appointment revolves around outside forces that an appointee cannot control, this renders the whole process "random." But then your definition, nearly every job search under the sun is random. No one can control who their interviewer is, what kinds of jobs are open at moment, if and when the company is hiring, who knows who's uncle, and so on and so forth. Yet somehow most people recognize that hiring is not a random process, and by far and large such things follow some deterministic, if convolted, logic.

I don't contest most of what's written up there. There is no doubt that an SC job is very hard to get - this does not make it random. There is no doubt that many other lawyers could fill an SC's justice slot - this does not make it random. Everything above is true; it's just unfortunate that they don't actually prove what you're saying.

You seem to suggest that getting a SC appointment is like winning the Publisher's House Clearing Sweepstakes, as if Clarence Thomas was just twiddling his thumbs at home one day and some freak stopped by to tell him he's won. What Thomas did was follow a predictable trajectory of nearly any lawyer who wants a top political position, by making connections and doing the prep work so that when the opportunity does arise (as it nearly always does in some form or another), he was ready to grab it. There is no mystery there. Thomas's early connections helped raise his SC probability from zero to slightly above zero; extenuate circumstances brought on by the President's desires and the political realties of the Senate helped pave the way.

None of this to me constitutes randomness. It is a stupid way to choose a Justice, but a fairly orderly and transparent one.

Now a chance for my question: Do you think that Thomas's first job played no role in preparing his way for an SC appointment? That his connections with Mr. Danforth, future big-shot senator, weren't the tinnest bit helpful in the entire process? That perhaps there were significant benefits to the job not expressed in dollar signs?
10.7.2007 8:13pm
Charlie (Colorado) (mail):

Which is a damn sight different than the claim that "random chance necessarily plays the overwhelming role in selecting who gets the job."


PB, if there are 110 total Justices out of the thousands of potentially qualified attorneys, yes, you would infer that random factors play the overwhelmingly dominant role.
10.7.2007 8:21pm
govs:
I recruited for a major midwestern law firm from 1969 to 1975. We were begging for Harvard and Yale law school graduates, regardless of rank in class, at a starting annual salary of $15,000 to $20,000. We were especially interested in black and female candidates, becuase of AA. It is beyond ludicrous for Thomas to claim that his Yale law degree was worthless. We wound up hiring blacks and females from second and third tier schools simply because the competition for them was so intense. More importantly, we would have taken a degree from an Ivy League school, regardless of color or gender over other candidates from the top of the class at a second tier school. Thomas has a serious self loathing problem that has nothing to do with politics or Anita Hill.
10.7.2007 8:24pm
Benjamin Davis (mail):
I have said this many times and will say it again - the point is that in the absence of affirmative action the situation would have been one black - maybe - every 20 years getting into these schools. Excellently qualified blacks were not admitted. There has never been race neutrality and there never will be. It is obvious that Thomas did not get jobs because he interviewed with firms that did not want someone with his grades and/or did not want to hire blacks. That is not surprising - look at Sandra Day O'Connor not being able to get a legal job when she came out of Law School. Why is it so hard to imagine that elite law firms at the time would be bastions of bigotry just like the local White Citizen's Council meeting?

Thomas has either let a trip be laid on him or he is laying a trip on himself about Yale. Or maybe the trip he is laying on himself is because it works for him with certain members of the public. Or maybe he believes what he says sincerely. Whatever. Those are his mind games.

Peace,
Ben
10.7.2007 8:30pm
OrinKerr:
Beem, Pig Bodine,

In reading over your comments, I get the feeling that you think I am trying to argue something sub silentio that I am not actually arguing, and that you are attacking me for a perceived argument that you think I believe but haven't stated. It's quite an odd experience, although your hostility is rather invigorating in an odd sort of way.

Beem: I think it's pretty clear that the Danforth connection turned out to be critical to Thomas's long term future. In particular, Danforth brought Thomas to DC when Danforth was elected to the U.S. Senate, and it seems that working for Danforth in the late 1970s helped push Thomas's politics from the left to the right. As best I can tell, it was arriving in DC as a black conservative on Danforth's staff around 1980 that was the key to Thomas's future. I'm curious, does anyone argue to the contrary? I would think that these claims are pretty uncontroversial. I certainly haven't heard Justice Thomas argue anything different; I understand Thomas to focus on his job options in 1974, not what happened in the Reagan and Bush years.
10.7.2007 8:31pm
RL:
As a fellow Catholic, I'm surprised that Thomas doesn't recognize that it all worked out for him the way it was supposed to.
10.7.2007 8:37pm
Charlie (Colorado) (mail):

That ascending to the Supreme Court is something very hard to do does not make the process random, a idea so ludicrous I'm surprised Orin has the stones to pretend otherwise.


Beem, sadly, both you and PB seem to share the common affliction of not understanding randomness at all. So lets try taking it in little pieces.

Let's say that there are 100,000 law school graduates in year 1. Some proportion of them, let's say 10,000, graduate from elite schools. The difference between the elite school lawyers and the other 90,000 are in part random: some of them are more skilled or more intelligent, certainly, but some of them had familial connections to the big schools, have money to pay for school, and so forth; conversely, some of the 90,000 were probably quite capable of the work in the elite schools, but for various reasons (such as family demands, desire to stay in-state, financial issues, etc) they didnt' do so. Much of this is random.

Then, among those 10,000, some number of them, by year 10 or so, are dead, in car accidents and the like. Purely random. Among the survivors, some of them are Republicans in Democratic districts, and so aren't nominated for judgeships at the appropriate time. Of that number --- let's say it's 5000 now --- only 10 or 20 may actually be nominated, and they may or may not be confirmed. This pares it down to maybe 5 out of the original cohort, and many of the steps that cull the losers are completely random.

And now, that cohort has to compete with the cohorts from, say, a 20 year span, so the competition is really about 200 judges for the 20 year span that our cohort of candidates might conceivably be nominated. In that 20 year span you might expect 3-5 vacancies. At that last stage, you still have the issue of whether you're associated politically with the right party at the right time, which is itself random.

So yes, it is by far dominated by chance.
10.7.2007 8:40pm
Pig Bodine:
PB, if there are 110 total Justices out of the thousands of potentially qualified attorneys, yes, you would infer that random factors play the overwhelmingly dominant role.

Why's that? There is one Pope out of more than one billion Roman Catholics. Should I infer that he was randomnly chosen? Exactly how does rarity or exclusivity imply randomness?
10.7.2007 8:40pm
Beem:
And furthermore...


Hey, by that logic, Jim Crow was great for Thurgood Marshall. Without it, he'd never have made it to the Court.

First, I fail to see how Mr. Danforth, or the position of Assistant Attorney General, is remotely analogous to Jim Crow. Perhaps you should spend more time thinking and less time wringing out whatever hysterical comparison comes to mind. Second, you seem to be accepting the fact that, save that job, Clarence Thomas could very well not have gotten the seat. Given that, shouldn't Thomas be incredibly grateful for a job that turned out to be so beneficial in his future career? Insofar as one can raise one's chances in the SC competition, there is very little that is as valuable as political connections from powerful people like Mr. Danforth.

There are things that a SC aspirant cannot control. There are thing that a SC aspirant can. Of the latter category, very few things are as useful as political connections. Thomas's first job was enormously beneficial in that regard. I frankly do not get why this idea is so hard to grasp, save delibrate obliviousness. I cannot dumb this down further, so if you don't get it now, then you never will.
10.7.2007 8:43pm
Pig Bodine:
Much of this is random.

You keep using that word. I do not think it means what you think it means.
10.7.2007 8:47pm
Logicman (mail):
Similar to your assumption about employers, about "people"?

Where is the assumption here? People means some people. I'm not sure why you would read it as "all people". If someone means something categorically, they usually make that clear.
10.7.2007 8:48pm
Charlie (Colorado) (mail):
Pig, if we're going to have to start this far back, you're going to need to get some basics first. Are you --- as I suppose you might be, from the choice of the Pope --- starting off with the supposition, philosophically, that there is no randomness, that all these things are predestined?

If not, which of the various potential culling factors --- premature death, election results, personal situation, and so on --- that I identified as random do you think are, in fact, not a matter of chance or randomness?

Honestly, I'd really recommend the recent book The Black Swan; I suspect you need rather more education on chance, randomness, stochastic systems, than you exhibit so far.
10.7.2007 8:49pm
Charlie (Colorado) (mail):

Why's that? There is one Pope out of more than one billion Roman Catholics. Should I infer that he was randomnly chosen?


Wait. Should I be inferring that you actually don't understand the difference between "randomly chosen" and "getting the job is dominated by chance"?
10.7.2007 8:53pm
Beem:
Charlie, I certainly appreciate your efforts to edumucate me, though I feel we are getting snagged on some important issues. I, like any other person, have my flaws. In this case, I am unfortunately limited by the constraints of the English language, which means I tend to use words according to their actual meanings, rather than the exciting approach which you use, where words mean whatever the hell you feel like at the time. For future reference, here is the actual definition of random
Note that "factors outside my control" does not appear in the definition.
10.7.2007 9:10pm
Pig Bodine:
Wait. Should I be inferring that you actually don't understand the difference between "randomly chosen" and "getting the job is dominated by chance"?

Wait. Should I be inferring that the 1-in-a-billion nature of the Papacy means that getting that job is dominated by chance?
10.7.2007 9:17pm
MikeC&F (mail):
Some of these comments astound me. A middle-of-the pack Yale Law grad usually has options - many options. Many, many options.

If you can't see this, it is only because you have absolutely no knowledge of the legal job market. In which case... Why comment?
10.7.2007 9:17pm
Logicman (mail):
I would like to remember her too. What's her name? Or, which base is she stationed at? And, is it Army or Air Force JAG?
10.7.2007 9:41pm
Proud to be a liberal :
The question of whether Clarence Thomas was denied employment based on the stereotype that he was an "affirmative action" admit is a factual question, just as is the question of whether he was denied a job based on his race is a factual question, although both are difficult to investigate, especially so many years later.

Clarence Thomas may have a hunch that it was the first. But to know the answer, more information is needed. First, what jobs did he apply for (both in his first year, second year, and at graduation)? Second, who interviewed him? (Those individuals could be interviewed). Third, who were the successful applicants for those positions? Then, the applicants can be compared with Clarence Thomas. And the factual issues could be investigated.

For example, if Clarence Thomas was not interested in working in NY and did not apply to NY law firms, then obviously there would have been no discrimination against him in that job market.

It would be interesting to look at other African American students at Yale, Harvard, and other law schools who graduated in 1974 and see what jobs they were offered and how they did ultimately.

It may be that Clarence Thomas perceived that he was subjected to discrimination based on the affirmative action stereotpe but he was actually subjected to racial discrimination of the old-fashioned variety or that there was another reason.

Another question is also what did the Yale career services office do to help him get a job in an area that he preferred.

What was amazing to me was the degree of Thomas's bitterness at Yale today. It is one thing to say that when he graduated he felt the degree was not worth much money, but it cannot be disputed that it was the old-boy network of Yale alums, including Danforth, that ultimately led to his appointment to the Supreme Court, which is one of the best jobs a lawyer can have.

An interesting question for Thomas would be what kind of job did he want when he was in law school? Does he feel that his career would have been better if he had had the job of his choice when he graduated law school? Is there another job that he would like now?

My daughter did note that his current job does not pay very well for lawyers. In fact, I believe that he has the lowest amount of assets of any judge on the Supreme Court (at least before his book was published).

However, if he would rather be a partner at a large law firm now, I'm sure there are many firms that would be willing to hire him &pay him millions.
10.7.2007 9:54pm
Harry Eagar (mail):
Hmmm. How many other Yale '74s had only one job offer?

(Are we to assume Thomas sought in many places for work?)
10.7.2007 9:56pm
David Sucher (mail) (www):
From my Mac dictionary:

random
unsystematic, unmethodical, arbitrary, unplanned, undirected, casual, indiscriminate, nonspecific, haphazard, stray, erratic; chance, accidental.

Sounds to me like a good description of how SC Justices are chosen.

Consider the opposite, a "systematic" method: choose highest ranked students, send them to special school for judges and rank/test them every year, even as judges. Smartest ones go on to higher courts as vacancies arise and a few ultimately become "Supremes." That's systematic. We don't have systematic as there is not even the pretense that the people nominated are "best qualified."

It's like the old saw "The Supreme Court is supreme not because it is wisest but because it is last."
10.7.2007 10:37pm
SIG357:
Pig Bodine

There is one Pope out of more than one billion Roman Catholics. Should I infer that he was randomnly chosen?


Yes, you should.

You are assuming that the word "random" means "lets put the names of one billion Catholics into a box and pick one". That is not what it means. It simply means that the outcome or result of a process is not predictable.

You certainly know little about mathematics, and I suspect you know as much about the law.
10.7.2007 10:40pm
David Sucher (mail) (www):
Unintended black humor (No pun):

More importantly, we would have taken a degree from an Ivy League school, regardless of color or gender over other candidates from the top of the class at a second tier school.

What an asinine way to run a legal system.
10.7.2007 10:49pm
Finally, Mr. Kerr bares his teeth (mail):

I'm curious, are you new here? We usually aim for more sophisticated and thoughtful comments than what you have been writing, whether from the left or the right.


For nice guy Orin Kerr, this is a pretty vicious statement.
10.7.2007 11:30pm
Laura S.:

How many white engineering graduates of UM-Rolla or Kansas State were less qualified as HS seniors than minorities invited to fail at MIT or Caltech?

Apparently you aren't that familiar with Caltech. Unless you consider Asians 'minorities', minorities comprise about 1% of the student population. Asians comprise 30-40% of the school population. About another 10% of the school is Europeans on Student visas.
10.7.2007 11:35pm
肿瘤 (mail):
10.7.2007 11:37pm
David M. Nieporent (www):
Pig:
Wait. Should I be inferring that the 1-in-a-billion nature of the Papacy means that getting that job is dominated by chance?
Yes, you should.

If you don't understand that, you're either really obtuse or you're being argumentative for the sake of being argumentative.


Beem:
Everything above is true; it's just unfortunate that they don't actually prove what you're saying.
No; they just don't prove the stupid interpretation you're putting on what he's saying.

Now a chance for my question: Do you think that Thomas's first job played no role in preparing his way for an SC appointment? That his connections with Mr. Danforth, future big-shot senator, weren't the tinnest bit helpful in the entire process? That perhaps there were significant benefits to the job not expressed in dollar signs?
I think that his first job played no role in preparing his way -- not in the way you mean. He was an entry-level lawyer in the state AG's office in Missouri. Do many Supreme Court justices come from there? Perhaps more to the point, there were likely many other lawyers in the state AG's office in Missouri during the eight years that Danforth was state AG. Did any of them use their connections with Danforth to become Supreme Court justices?

He was hired by a state attorney general, not a "future senator." The odds that said attorney general would run for senate -- well, it's not an odd career trajectory, to be sure. But the odds that he would do so and win -- well, that was pretty lucky for Thomas, wasn't it? But guess what? Danforth had already run for the Senate, six years earlier -- and lost! That was really lucky for Thomas, wasn't it? The fact that Danforth became respected by an awful lot of people and was years later able to shepherd Thomas through the nomination... well, that's pretty darn lucky. If any of these things go differently, Thomas doesn't make the Court.

That is not, contrary to what you wrote, like "nearly every job search under the sun." For one thing, it's not really a "job search" at all. Even if Alito jokingly wrote it in his yearbook, nobody "searches" for a job on the Court. For another, most "job searches" are interchangeable; if your goal is to be a BigLaw partner, you can do well at Skadden, or Cravath, or Morgan Lewis, or.... Of course, some things will be out of your control, but oodles of Yale Law grads will do it every year. You don't have to be in the right place at the right time to end up a BigLaw partner. There's not one single window of opportunity. You don't have to hope that one of 9 people in the U.S. dies (or becomes seriously ill) at exactly the right time.

What Thomas did was follow a predictable trajectory of nearly any lawyer who wants a top political position, by making connections and doing the prep work so that when the opportunity does arise (as it nearly always does in some form or another), he was ready to grab it.
And yet, "nearly any lawyer" doesn't make it to the Court.

We're not talking about a "top political position." We're talking about the Supreme Court.
10.7.2007 11:40pm
David M. Nieporent (www):
What was amazing to me was the degree of Thomas's bitterness at Yale today. It is one thing to say that when he graduated he felt the degree was not worth much money, but it cannot be disputed that it was the old-boy network of Yale alums, including Danforth, that ultimately led to his appointment to the Supreme Court, which is one of the best jobs a lawyer can have.
My sense is that Thomas was disappointed in his Yale degree when he got it; his bitterness relates to some of the vicious attacks on him coming out of Yale when he was nominated.

(Not that Yale was anything close to unique in that regard, of course -- but I think Thomas was expecting a little more support for an alum.)
10.7.2007 11:43pm
Tony Tutins (mail):

As a fellow Catholic, I'm surprised that Thomas doesn't recognize that it all worked out for him the way it was supposed to.

This doesn't sound like part of the catechism. When I was in parochial school, we were taught to work as if everything depended on us, and pray as if everything depended on God.
10.7.2007 11:58pm
Finally, Mr. Kerr bares his teeth (mail):
I do not actually think that Mr. Kerr and Mr. Pig disagree.

Mr. Kerr is emphasizing the element of chance, but surely not denying that there are actions that individuals take that increase their chance.

Mr. Pig is emphasizing the element of choice, but acknowledges that there is an element of chance in being selected for a position on the Supreme Court (as there is with most job searches).

Mr. Nierporent, for his part, says that it is "hard" to get a job at Cravath. But I say you have to be lucky too. If you had interviewed with Cravath associate A instead of associate B, maybe you would have gotten that summer offer. (Assuming, of course, that you have excellent grades which makes it possible to even have a chance at getting the position at all.)

Here is a mathematically correct assessment of the situation. Supreme Court justices are selected randomly, but not all individuals are equally likely to be selected. Now, note that my use of the word "random" contradicts that used in statistics, which requires that all individuals be exactly equally likely to be selected. (Hence the criticism in statistics that a sample is not "truly random.") But, even in statisticians call things that are not truly random, random. When they are "random enough" to be called random.

All this is too say that Pig's criticisms, while perhaps technically correct if you want to be extremely anal and adopt one particular definition of random (i.e. the statistical one, there are looser non-statistical definitions of random), is basically useless. There is nothing wrong with saying that something that has a very large degree of chance is "random," especially if you are using a looser definition of random. Further, I think implied in Kerr's statement is the narrowing of the universe. He is not saying "random" with respect to the universe of all persons. He is saying "random" with respect to the universe of all individuals near the top of the profession who might be considered. I would still say that Mr. Kerr is wrong if we fix enough variables. Given President Bush as President, Ms. Miers was not selected at random. Maybe if we fix less variables, it is random.

Whatever. This discussion is not worth having. It is anal in the extreme.
10.8.2007 12:09am
OrinKerr:
"Finally, Mr. Kerr,"

Excellent comment. I suspect that's basically right, and it's a helpful effort to reconcile the different perspectives.
10.8.2007 12:21am
Michael B (mail):
"Where is the assumption here? People means some people. I'm not sure why you would read it as "all people"." logicman, suggesting logic is at play here, no mere opinion or assumption

So, "people" authoritatively means "some people," regardless of context? It doesn't mean a few people, or most people and it most assuredly doesn't mean all people? Strunk & White? Or some other authoritative source? Yes, mea culpa, mea maxima culpa, mine was an assumption, albeit one read within the given context. Too though, that particular comment was intended more to take note of a human foible, one we all share. Excluding yourself, certainly.

I note this more because it reflects yet another example - as if more are needed - of how discussions tend to devolve when assumptions and MSM-styled talking-head repetitions concerning Thomas, and similarly burdened topics, are addressed.

Priorities.
10.8.2007 1:05am
dll111:
I read a biography of Thomas by Andrew Peyton Thomas (no relation). J. Thomas worked at a civil rights law firm in Georgia after his 2nd year of law school. He got a job offer from that firm, but did not accept it, with the author's implication that his then wife did not like living there and that Thomas himself did not want to be pigeonholed as a black civil rights lawyer. He apparently did not interview for clerkships at the white shoe firms and thus did not get job offers at such firms.

Thomas got an interview with Danforth when the future senator called a Yale Law Prof he knew to find young soon to be grads for his new job as Missouri AG. Another student told the professor of Thomas and Danforth travelled to YLS to interview him. He was offered a job after the interview but would not accept until he visited the office and the area.
10.8.2007 11:42am
SIG357:
Statistics does not assume that all people are identical, or "equally alike". Given that such an assumption is patently false it would invalidate all conclusions which followed.

If random chance does NOT play the overwhelming role in selecting who gets on the Court, i.e. if the process is deterministic, then it should be childs play to predict the name of the next individual who will get on the Court.
10.8.2007 5:53pm
Byron00:
If random chance does NOT play the overwhelming role in selecting who gets on the Court, i.e. if the process is deterministic, then it should be childs play to predict the name of the next individual who will get on the Court.


Child's play, assuming only that all the relevant variables can be identified, and their values specified, along with the population of possible individuals, and specific time frame within which all these factors and their interactions apply.

Now, that's funny!
10.8.2007 8:14pm
Megan Howell (mail):
Doesn't random mean that with reference to a sample, every member of the target population has an equal opportunity to be included? If so, wouldn't that mean that if membership on SCOTUS was truly random then everyone would have an equal opportunity to be there?
Meg
10.11.2007 6:52pm
fgsdf (mail):
10.12.2007 10:31pm