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.
Did Justice Thomas Know He Was Admitted to Yale Because of His Race:

I can't find a link right now, but I've seen several commentaries that expressed incredulity at Justice Thomas's claim that he believed that he was admitted to Yale Law School not because he was black, but because of the obstacles he had overcome (which were, to understate things, rather substantial) while succeeding in every educational environment. According to Thomas, the administration at Yale led him to believe that they were inclined to admit him because of his successes at overcoming these obstacles, and it was only later that he discovered that they and everyone else viewed him as the recipient of a race-based advantage that he obviously feels demeaned what he had accomplished.

I can't vouch for Thomas's account, but I did want to point out that it's entirely possible that Yale denied it was giving him special treatment based on race. In fact, until rather recently, as a result of publicity attendant to the drop in minority admissions at the UC law schools after Proposition 209, and the data revealed as a result of anti-affirmative action litigation brought in Texas and Michigan by the Center for Individual Rights, the leaders of elite law schools routinely denied that they used meaningful racial preferences.

Consider Dean Herma Hill Kay of Boal Hall Law School's response when she was asked on national television in April 1995 why there was "a widespread perception that the minorities who are admitted with those special considerations are the result of standards being lowered." Kay responded that law schools do not lower standards to admit minorities. Rather, when schools "'choose between two equally qualified persons,' . . . [they] pick the 'person of color' in order to 'do something about the really fundamental problem of racial prejudice in this society.'"

Meanwhile, for the entering class in 1996, the average LSAT statistics for Boalt students were as follows: Whites 168 (96.9 percentile); Asian 166 (95); Hispanic 159 (80.5); Black 155 (67).

I provide a couple of other examples of elite law schools denying or downplaying their racial preferences, including one from the Yale administration circa 1990, in this article (a defense of a constitutional right for private universities to use racial preferences in admissions).

If as late as 1995 law schools were denying their use of preferences, it's not hard to imagine they were doing the same twenty years earlier, and that Thomas believed them.

Clarence Thomas, Yale Law School, and Affirmative Action:

Like co-conspirator David Bernstein, I think it wasn't unreasonable for Justice Clarence Thomas to believe that he got into Yale Law School without the aid of affirmative action. It is important to remember that Thomas was in the top two percent of his undergraduate class at Holy Cross. When I was a student at Yale Law School in the 1990s, I had numerous white classmates who had gotten in by virtue of being in the top 1-2 percent at undergraduate institutions of the same caliber as Holy Cross, and in some cases ones significantly less prestigious. Admittedly, I don't have any aggregate statistics; but I certainly met quite a few such students during my time at YLS. I was able to meet a significant percentage of the other students at YLS at the time, due to the school's small size; so the people I met were probably a roughly representative sample of the YLS student body. Most of the white YLS students from non-elite undergrad institutions did not have anything in their backgrounds comparable to Thomas' inspirational story of growing up in poverty in a broken home (Thomas' father left his family when he was an infant, and Thomas was raised by his grandfather).

Assuming that Thomas had a good LSAT score, the combination of his record at Holy Cross and his life story might well have been enough to get him admitted to YLS were he white. Based on my observations, he might have gotten in on that basis in the 1990s - a time when admissions standards were probably slightly higher than in the 1970s because by that point Yale had regained its standing as the generally acknowledged no. 1 law school (a position it had arguably lost to Harvard in the 70s).

As liberal constitutional law scholar Mark Tushnet documents in this article, Thomas' opposition to affirmative action is not based on the view that it is intrinsically unjust to whites, but on his belief that it does blacks more harm than good in the aggregate. For reasons I discussed in detail here, it therefore would not be unethical for Thomas to benefit from affirmative action while personally opposing it. In fact, however, it is possible that Thomas had good reason to believe that he might have gotten to YLS even without the benefit of affirmative action. If that conjecture is right, then affirmative action was a net loss for him in that phase of his career (though it probably helped him later in the Reagan Administration). Its existence led potential employers and others to doubt his abilities, without helping him to get into Yale.