Supreme Tautologies 101

Yesterday, Justice Scalia gave an interview/lovefest at the Federalist Society's something-or-other, and had this to say about why he hires almost exclusively from the high and mighty Ivies:

He then reprised his somewhat controversial defense of elitism in law clerk hiring: “The best minds are going to the best law schools. They might not learn anything while they’re there [laughter], but they don’t get any dumber.”

(Note how Scalia did not use politically correct terminology. The PC approach calls for referring to the “highest ranked” law schools rather than the “best” law schools.)

As an initial matter, I respectfully disagree that law school can't make one dumber. It can, and it does.

But what is this basis for determining the "best" law schools? I suppose it's rankings, historical prestige, and alumni. Given his joke, it's not the quality of education (e.g. "Harvard can take a 160 LSAT and make him a better lawyer than Stetson."). He seems, without question, to be of a nature-over-nurture belief. That's fine; I am, too.

But if Justice Scalia believes in nature over all, doesn't that imply that the best schools are wherever the best students have gone previously? So wherever the best minds go are the best schools, and the best schools are wherever the best minds go? Can you be any more tautological?

Again, it's depressing to see a member of a body charged with rationally interpreting the law so sincerely flawed in its reasoning. Of course, I don't actually believe Justice Scalia is dumb or irrational. On the contrary, he's highly intelligent. I just think it's obvious that he's rationalizing his naked elitism in a rather puny attempt.

If you want to hire "the best minds," why not have some objective criteria that goes beyond the name of the school? Why not just go to LSAT scores? Why not give a generalized knowledge and intelligence test to anyone wanting to apply? Besides, if you're hiring from the pool of appellate clerks nationwide, you're already dealing with "the best minds" and you shouldn't have to use "Harvard" or "Yale" as a lazy-ass short-cut to weed the applicant pool.

I say all this because at my own top 100 school, there are approximately 10-15 people in each graduating class who are fully qualified to compete at any T-14 in the country. Approximately 8-10 of them could have gained admission out of undergrad (167+ LSAT, 3.5+ undergrad GPA). Why did they go TTT when they could have gone T-14?

First is full-tuition scholarship money and second is that you learn the same darned law at the TTT while being the faculty darling and being first in line for every opportunity the TTT has. Almost every TTT in the country pays to bring in these "ringers" to up their LSAT medians.

I'll fully admit that a school like Pepperdine is not as "good" of a law school as Cal or Stanford, mostly because the average student at either Cal or Stanford would mop the floor with the average student from Pepperdine. But there's no doubt in my mind the top students at Pepperdine would compete and possibly be the top students at Cal or Stanford, mostly because in terms of pre-law intellectual ability they were likely indistinguishable and the law schools really don't advance that innate intellectual ability Justice Scalia so craves.

This is not 1940 or even 1980. It is not Ivy-or-bust, either in undergraduate or in graduate school. Just as intelligent minds wind up in all sorts of undergraduate locations, bright people get lured into going to schools outside the T-14 for any number of reasons. In an age where the private T-14s cost 40k a year, it's completely plausible that a highly-intelligent student would choose a degree from a respectable lower-ranked school for $0 in tuition than take out $120k in debt. And there's evidence that this has been happening; one only need to note that the award winners at Moot Court and Trial Team competitions routinely come from lower-ranked schools. It's not like Georgetown or Wash U. send their chaff to these things. It's just that, now, the very top students at TTT would fit right in at a T-14 and possibly wind up at the top. Assuming that those students would finish lower at the higher-ranked schools is nothing more than baseless speculation based on elitist presumptions.

Perhaps if Justice Scalia were truly open to more objective criteria to discover "the best minds," he would have realized this a long time ago. Instead, he perpetuates his superstitious and elitist beliefs that best minds = best schools = best minds, perpetuating silly superstitions. It should go without lengthy explanation that irrationalities backing elitism that smacks in the face of promoting candidates on true merit is to the detriment of the entire legal system.