Privilege and Power
There's an interesting apocryphal story told by journalist Bob Costas in Ken Burns' excellent documentary, Baseball. An Englishman and an American are having a conversation, and at some point it becomes an argument. The two resort to insults. The American says "screw the Queen". The Englishman says "Oh yeah, screw Babe Ruth".The American thinks he can insult the Englishman by insulting a person who has done nothing to achieve her position other than the luck of birth. As Costas says, it has nothing to do with any personal qualities good, bad or otherwise. Who does the Englishman think embodies America? Some scruffy kid who came from the humblest of beginnings, hung out as a toddler behind his father's bar in Baltimore, a big badly flawed individual, who strides with great spirit and possibility.
I thought of that on reading a troubling story regarding the South Carolina State Supreme Court's decision to eliminate the results from one bar exam question, allowing several people to pass who otherwise would have failed. Who are the recipients of the revision? Two young women, one the daughter of State Representative Jim Harrison (R), chairman of the State House Judiciary Committee; and the other a daughter of State Circuit Court Judge, Kendall Burch.
Each state composes its own bar exam, and law students invest tremendous time (and money) during 7 years of higher education to take the exam. This includes 10 weeks immediately before the exam doing nothing but studying for the exam. It's a difficult test to be sure, but all it takes is discipline and some hard work. You learn the rules, and then you're a lawyer. It's not fun to fail, but you can take the test again as many times as it takes. Having passed the bar in the nearby state of Georgia two years ago, I find this story particularly troubling. I can guarantee, if I botched a section nobody would have helped me out and thrown a section out of the exam.
MoneyLaw is an interesting blog on legal academia in the US, which uses as an example the way major league baseball teams scout for talent in the minor leagues. One of the contributors there, and the Dean of Louisville Law School, Jim Chen makes a poignant criticism of the South Carolina Supreme Court's decision:
Legal professionals, in South Carolina and the rest of the nation, have every reason to question the Supreme Court's decision to mint 20 new lawyers who, by every account, flunked South Carolina's July 2007 bar exam. They have reason to doubt the high court's outlandishly illogical explanation. This sort of thing has happened before; now it is being reinstitutionalized anew. Not Very Bright's timeline leaves no room for doubt: this was a hamfisted, naked power play by South Carolina's judiciary, carried out at the expense of that state's bar and larger public. Yet, like many observers who are far closer to South Carolina than I am, I too expect this scandal to fade from public view as attention turns to Thanksgiving and this weekend's Clemson-Carolina football game. Panem et circenses, indeed.The simple explanation is, as usual, correct and complete. South Carolina's lawyers, by my informal survey, are horrified by the Supreme Court's abuse of power. They rue how this episode will resonate for years, even decades, as yet another generation of South Carolinians learns that power, not prowess, that pedigree, not performance, holds the key to success. They cringe at the thought of outsiders consigning this most quintessentially Southern of Southern states to perpetual cultural irrelevance in the American pageant.
The emphasis is mine. Sadly I think no matter where you go power and pedigree have a way of trumping performance. Why aren't more South Carolinians speaking out? Jim Chen has some thoughts on that as well via conversations he's had with lawyers there:
- "[In South Carolina,] retribution from the powers-that-be can be swift and brutal. That's not paranoia. It really is how things work here. There are no checks and balances, and if a megalomaniac rises to power, it's lights out."
- "[Chief Justice] Jean Toal can have you electrocuted if you cross her."
- And this gem from a commenter on FITS News for Now: “I’m embarrassed to be an attorney in South Carolina right now. . . . First it was the Court’s decision, now it’s the Bar Association bending over and taking it. No attorney is ever going to go on the record and say this, but the entire episode is disgusting, disgraceful and discouraging for everyone associated with this profession. Everyone knows so, everyone thinks so, but (the Justices) hold so much power no one dares to say anything, to say nothing of trying to hold them accountable for it.”
Comments for this post have been closed, as it struck me they weren't particularly helpful.
