During their testimony this past week in front of the House Appropriations Subcommittee, Justices Thomas and Breyer conceded that getting a clerkship on the Court comes down to a great extent to a candidate's networks and connections, to "the people you know," in the words of Justice Thomas.
I wonder if the implications of their concessions was lost on the justices, especially Justice Thomas.
Whatever happened to "merit?"
This should not be hard question, particularly for Justice Thomas. The issue of law clerk diversity should be open and shut for him: I only hire on the basis of merit, he should have said, the same way that Michigan law school should admit its students and New Haven should promote its firefighters. Instead, he chose to talk about the pool of candidates and how he basically does the best he can under the circumstances.
In fairness to him, it may be that he was simply pandering to the subcommittee, telling its members what they wanted to hear. But that seems unlikely. I really think he was being honest. For a telling example, consider the case of Duke Law School and its most recent dean search.
Think first about what the concept of merit would entail in such a search. What does it mean to deserve a position of dean at a major law school, not to mention an elite one. Strong academic credentials? Strong fund-raising record? Affability? Good looks and charming personality? All of the above? I don't really have a definitive answer, and anyone who has been part of a dean search knows full well that faculties don't have one either. They simply hire the person they like, or the candidate who feels right, or whatever. They look to the future and hire the candidate they think is best positioned to get them there. Hardly an exact science.
A little over two years ago, Duke Law School found itself in this position. Their three finalists were Erwin Chemerinsky, then a faculty member at Duke and presently dean at UC-Irvine; Kyle Logue, professor of law at Michigan Law School; and David Levi, Chief Judge of the United States District Court for the Eastern District of California.
For someone looking on the outside, the choice seems pre-ordained. But rather than choose Chemerinsky, the law school chose Judge Levi. A surprising choice, it would seem. Upon close inspection, not so much.
Judge Levi is the son of Edward Levi, former attorney general under President Ford, former President of the University of Chicago and former dean of the Chicago Law School. Without question, his credentials are impeccable, and by no means do I intend to impugn them: he is a magna cum laude graduate of Harvard College, graduate of Stanford Law School, where he graduated Order of the Coif and was President of the Stanford Law Review, and clerked for Justice Lewis Powell. Under any measure, Judge Levi is qualified to do whatever he wants in life, including lead an elite law school. But just think: when was the last time you heard of a federal judge leaving the bench to become dean of a leading law school?
In a world where connections, networks, and "the people you know" make all the difference in the world, the appointment of Dean Levi was a masterful one. Could it be a coincidence that Duke law is sending three of its graduate to clerk on the Supreme Court the upcoming term?
Is it also hardly a coincidence that Elena Kagan and Diane Wood, former professors at the University of Chicago Law School -- where President Obama once taught as a senior lecturer -- are leading candidates to replace Justice Stevens.
The bottom line is simple: in a world where networks and connections matter, we already know who will not get jobs and gaudy appointments to important places. We can focus on Mr. Ricci and Ms. Gratz all we want, but the world that conservatives on the Court want us to believe exist, a world where hard work and individual effort will get you places is simply not the real world. In the case of Justice Thomas, it is particularly galling that not only did he get ahead in the world through networks, his race, and the people he knew, but he also fully recognizes and acknowledges the realities of the world. So, when you read his next opinion hiring, admissions, or equal protection in general, keep his testimony from last week in mind. The man is either inconsistent, not smart enough to see the inconsistency, or a hypocrite.