Amy Coney Barrett thrilled the dumber segments of the population when she revealed that she didn’t bring any notes into her Supreme Court nomination hearing. Senator John Cornyn gushed, “that’s impressive,” becoming the first of a flurry of conservative observers to fawn over the idea that the nominee could rattle off canned, evasive answers about basic law without referring to a notebook. It was, to be clear, not even the remotest bit impressive. What it was was openly contemptuous of the hearing process — a performative acknowledgement that she didn’t care enough about the hearings to even bother to come prepared. No nominee was going to leaf through a notebook, but it would convey basic respect to at least bring it with you.
[UPDATE: Some people have pointed out that other nominees have had little to no material in front of them, which misses the point of the performance. Those nominees weren’t set up by the committee to answer a series of inane questions about basic legal concepts all to set up a ludicrously staged “wow, and you did that from memory?!?” exchange. This was designed from jump to convey a breezy lack of respect.]
Karma, as it happens, has a way of striking back at this sort of hubris. And strike back it did when the walking COVID superspreader was asked about the First Amendment and couldn’t remember what it says.
In the immortal words of Rick Perry… “oops.”
But justified comeuppance aside, what this exchange really proved was how ridiculously stupid the bar exam is as an exercise and how thoroughly it’s poisoned the whole legal process.
Republican Senators, especially John Kennedy of Louisiana, have been asking these dumb remedial law questions of nominees for a while now, as if the hangup with someone appointed to the federal bench is going to be defining the Rule Against Perpetuities from memory and not, you know, “do you believe segregation is illegal?”
It’s the same unfortunate energy motivating the death drive for bar examinations across the country. There’s very little about being a lawyer or a judge that requires knowing random law facts from memory. We don’t practice in a law-themed Jeopardy tournament. The only scenario in the profession that really requires snap knowledge that the attorney hasn’t meticulously prepared beforehand is on-the-spot objections and learning how those work isn’t particularly hard or especially relevant for an M&A attorney or a Supreme Court justice.
This is a research profession. It’s the approach a practitioner takes to researching and preparing for the issue at hand that demonstrates minimum competency, not a memory test. The idea that being “good” at law is memorizing random legal nuggets is what births the inane belief that being a federal judge means having EVEN MOAR facts about abstention doctrine to spout off the top of your head. It is the logical conclusion of the broken approach to gatekeeping in this profession at all levels.
Which brings us back to her notes.
Because the test of a good lawyer isn’t the answers they have memorized or the ability to successfully bullshit their way through a two-minute answer, but their preparation. What did they consider worth brushing up on? How did they consider framing complicated issues? What sources did they consult to support their conclusions? Failing to list the freedoms enshrined in the First Amendment looks awkward but from a professional standpoint mostly irrelevant. Some clerk was going to let her in on the First Amendment secret before she walked into oral argument. The public is never really at risk that she’s going to just blank on a whole section of the law because she forgot.
No, the truly embarrassing answer came earlier in the testimony. When she held up that empty notepad.
Earlier: Senator Embarrassing Judicial Nominees With Remedial Law School Questions
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