Friday, May 29, 2009

Nightmare of the Day #1

People who know your boy Ol' Fred know that he has been a bit of a Roubini in his outlook. I've been saying "the Inflation is a-coming" for a while-- any Econ major who DIDN'T go get his degree from an Ivy would tell you that keeping interest rates below 3% for months at a time eventually results in monetary inflation.

Well, ladies & gents, without much further ado, I bring you what I term "The Scariest Article In The World Today". While I don't agree with the final argument (that we will soon be seeing $100 Trillion bills), I do embrace the qualitative end-result.

My Question to you, dear BBLers, goes like this:

(1) Assume you are the average law graduate in 2010 with a mixed debt from undergrad and law school of approximately $110k (80k federal, fixed; 30k private, variable). Assume, also that the Fed has increased target rates to a reasonable 4% (so, given the historical spread, private lenders are going for between 6-7.5%). Your fed loans are capped at 6.8% per the Stafford agreement; your private loans are all over the place (some are at 2%, some are at 6% depending on when you originated them).

What steps, if any, can you initially take to (a) cut your interest rates; and (b) consolidate your loans into "one simple monthly payment."? I guess my question is-- can you go to Bank XYZ and say "I'm 110k in debt at a weighted average of about 6% (regardless of fixed v. variable). If you lend me 110k to pay it all back right now, I'll agree to pay you back at 6% fixed for a term of 10 years"? If so, what steps need to be taken; if not, why not?*

* I realize that there is a potential for transaction costs needing to be incurred. Notwithstanding that problem, I'm wondering what kind of pro-active solutions law students can take to stay ahead of a potential sky-rocketing interest rate in the near term?

Tuesday, May 26, 2009


I know that this is a bit delayed, but, since all the members of BBL are gainfully employed (or so I assume), we were unable to post until now. For those unaware, the California Supremes upheld Proposition 8, and therefore, declared that same-sex marriages are no longer legal in California (though, those 18000 marriages performed before today will be unaffected). For previous BBL commentary on Prop. 8 click here, here, and here.

The opinion is here. It's a 185-page doozy, so I'm not reading it until Saturday. One of my colleagues will probably be along shortly to analyze it. As for Fred, he's gots ta get some dinner and watch some Rescue Me.

Monday, May 25, 2009

How Do I File a Lawsuit?

Those of you who've been with us from the start remember the early days when Blackbook Legal was, at its core, an effort to stir up law school reform. We were young and ambitious, and we took it all on: from the nature of legal education to the emphasis on 1L grades and, of course, publish or perish.

I must concede that, in the midst of a wonderful semester replete with fantastic professors, we've been a lot more complacent lately. But we haven't stopped noticing the problems of legal education and certainly won't stop pointing them out to all who are willing to listen.

Let me rehash one such problem we've discussed at length before with a personal anecdote: I'm a rising 3L, and I literally have no idea how to file a lawsuit. I know what I'd need to include in a complaint, I know how the defendant would try to defend against the suit on procedural grounds and--depending on the area of law--I may know whether the substance of a claim has merit or not.

But I don't know how to file the suit. I don't know where I'd go or what I'd do. Maybe it's common sense or something I could easily figure out on my own using the internet--I'm not sure. What I am sure about is that, when I was being a typical law student this weekend and thinking of the hypothetical lawsuit I'd file on behalf of my fiance (who, sadly, got a minor burn by a negligent hot dog vendor), I literally had no idea what I'd do if she came to me as a client. I think that's sad, and is a poor reflection on what we're learning.

Don't get me wrong--I love law school, have almost uniformly loved my professors and actually enjoy studying and thinking about this stuff (even constantly). And, quite honestly, I have learned quite a bit in my two years...I just wish I had a little more practical knowledge and experience to apply when I enter the workforce.

Does This Apply To Lawyers, Too?

I've returned! Today's article (click here) comes from the Chicago Tribune and comments on the effects layoffs have on people's earning power. To summarize (and with help from the Jack Nicholson-Helen Hunt romcom): your earning power before layoff is "As Good As It Gets." This got me to thinking-- what does this say about all the layoffs and salary slashes in the legal profession (particularly BigLaw & Associates)? What about the future of law schools and the graduation of some of us who are looking at about 6-figure debt before we even get our first doc review? And, to add another ingredient into the mix: what about the ramping up of 'legal outsourcing'? Could 2008-2009 be just the beginning to the "Great Levelling Off" of wages some economists have been predicting?

With a return like this, I should've stayed away...

Friday, May 22, 2009

Still Think Waterboarding Isn't Torture?

Conservative radio talk show host Eric “Mancow” Muller was convinced that waterboarding wasn't torture. In order to demonstrate this, he had himself waterboarded during a live broadcast. Things didn’t go quite as he planned. Mancow almost immediately gave the emergency signal to be let free and surprised many listeners by concluding that waterboarding is “absolutely torture.”

I never thought I'd be offering praise to man named Mancow, but I give the radio show host credit. He had the guts to subject himself to this awful procedure, and then, even more impressively, he was willing to admit that he was wrong. Perhaps all advocates of waterboarding should follow in Mancow's footsteps (and yes, I'm talking to you, former AGs Alberto Gonzales and Michael Mukasey). If it's not torture, then why not give it a try?

Here is a link to the YouTube video showing the entire experiment.

For more on this story, please visit The Volokh Conspiracy.

Proposition 8 Opinion Forthcoming

The California Supreme Court has provided notice of its forthcoming opinion in Strauss v. Horton, the case testing Proposition 8's legality. We will keep you updated as we learn more.


UPDATE: According to the Court's website, the opinion will be issued this coming Tuesday, May 26th.

Wednesday, May 20, 2009

Commencement Speakers Should be Failures in Life

Law students across the nation are graduating. Graduation is obviously a time for celebration, but with these harsh economic conditions, the mind of an impending law school graduate is unfortunately filled with worries. Commencement speakers are undoubtedly addressing these concerns and offering advice for how to succeed in this economic environment. TaxProf has a detailed list of law school commencement speakers, and the names include great successes such as Elena Kagan (the potential SCOTUS nominee), Rudy Giuliani, Eric Holder, Michael Mukasey, and Karl Rove (ok, maybe he shouldn’t be classified as a success). Surely, these speakers should be able to provide law school graduates with insightful advice about how to succeed both in the legal profession and in life outside the law (it exists…I think). Right?

Timothy Noah, of Slate Magazine, however, has some unconventional advice for schools when it comes to picking commencement speakers: “Don’t invite people who succeeded. Invite people who failed.” Noah explains that “people typically have a much easier time recounting, in often vivid detail, where they screwed up in life than they do explaining what they did right.” This is certainly a novel approach. I’m not so sure how this would go over with the higher ups, but I kind of like it. In fact, I’m going to begin openly campaigning for Rod Blagojevich as our commencement speaker.

Monday, May 18, 2009

The Long Arm of the LSAC...

A week ago, we interviewed LSAT Blog's Steve Schwartz on tips to beat the LSAT. Amongst other things, Steve strongly urged prospective law students to take LSAT prep tests in the course of their preparation. Doing so, it turns out, is increasingly difficult. As LSAT Blog reports, LSAC has "pulled the plug" on a number of prep tests making them more or less unavailable for eager students:
[According to] LSAC's website (click on "The Official LSAT PrepTests") . . . it [is] no longer selling PrepTests 39, 40, 41, and 42. This mean[s] that not only has LSAC failed to publish another book of 10 exams, forcing students to pay $8/exam, and not only is its shipping incredibly slow, but now it[ has] made PrepTests 39-42 difficult to obtain.
The story makes little sense at first blush--why, after all, would LSAC withhold a valuable commodity that prospective law students would willingly line up to pay top dollar for? You don't need a 180 LSAT to guess the answer: test preparation companies (some of whom have already been accused of monopolizing the LSAT market) are willing to pay more via hefty licensing fees. So, in essence, the juggernaut test preparation industry can access all 60 existing LSAT exams while regular students self-studying only have access to 49 past exams.

And, to make matters worse, it turns out the test preparation companies end up getting "more" for "less." They pay only $194.00 for the 60 exam set as compared to the $208.00 a self-study student would need to pay for the 49 exams that are generally accessible. Of course, the test preparation companies only get such a "deal" because they're buying in such large quantities; it's simple economics. But when the practical result is to disadvantage others who (perhaps) cannot afford to fork over $1500 for an LSAT course, maybe that's a problem?

Thursday, May 14, 2009

Quoting Out of Context: A Reason for Not Allowing the Broadcasting of Oral Arguments

As I was reading an op-ed in the New York Times, I recalled an earlier post written by my colleague, Nima, which discussed whether television broadcasting of Supreme Court oral arguments should be allowed. The op-ed, written by Adam Cohen, argues that the Voting Rights Act may be in jeopardy because it “has run smack into the ‘federalism’ crusade of Court’s conservative bloc.” Cohen justifies his reasoning by quoting statements made by Justice Roberts and Justice Scalia during oral arguments. Unfortunately, Cohen takes the quotes out of context so that they fit his argument, and, in the process, misleads his readers.

For instance, Cohen paints a false picture of Justice Scalia’s reasoning:
Justice Scalia even asked, “Do you ever seriously expect Congress to vote against a re-extension of the Voting Rights Act?” Apparently, the fact that there is such overwhelming support for the act is an argument for why the Supreme Court should strike it down.

Now, anyone with a legal education should know that this is not Justice Scalia’s reasoning. Even if Justice Scalia was of the opinion that Congress did not have the power to reauthorize the Voting Rights Act, the popularity of the Act would not be a factor in his analysis. As a journalist with a Harvard Law degree, he obviously understands this (and, yes, Cohen is yet another Harvard Law alum not practicing law). Cohen uses the quotations only as a rhetorical device to bolster his (rather weak) argument.

Cohen’s article exemplifies the reason why oral arguments should not be broadcasted. Quoting out of context, like Cohen has done, causes the public to misconstrue the Court’s reasoning. Readers of Cohen’s article assume that Justice Scalia believes the Act should be struck down because there is “such overwhelming support.” This may inevitably lead to a loss of confidence in the Court.

If a respectable news source like the New York Times, and a journalist with a Harvard Law degree, can use these quotes out of context, just imagine what other, perhaps less respectable, sources may do (ahem, Fox News).

Wednesday, May 13, 2009

New York Court Extends State-Law Criminal Procedural Rights

As the New York Times reports, the New York Court of Appeals has held (in a 4-3 ruling) that police violate New York's constitution when they warrantlessly utilize GPS tracking devices to track motor vehicles. According to the Times:
The police had used the device to monitor the movements of the suspect, Scott C. Weaver, for more than two months. But the court ordered the evidence gathered from the device suppressed and ordered a new trial for Mr. Weaver.
This holding is interesting in light of United States v. Knotts, 460 U.S. 276 (1983). In that case, the Supreme Court held that the Fourth Amendment (under the United States Constitution) was not violated by the use of a "beeper" that revealed where contraband, driven around in public, was tracked. As the Knotts Court explained it, the use of the beeper did not constitute a search because "[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another." Id. at 281.

At first blush, the New York decision seems to afford broader criminal procedural rights than the federal Fourth Amendment, under Knotts, would require. However, in addition to some other factual differences, GPS devices are more intrusive than beepers in what they reveal. Thus, the New York high court noted that the issue was "unclear" based on federal law and "premise[d its] ruling on [New York's] State Constitution alone."

It will be interesting to see what happens if (or when) the Supreme Court takes up a similar issue. Of course, that question will have to wait for another day as the New York court's state law basis is independent of federal law, and adequate to sustain the judgment.

Is it "Wrong" for Judges to Follow Precedent?

Psychologically speaking, it may well be--at least according to Goutam Jois. While perusing SSRN the other day, I came across his provocative article titled "Stare Decisis is Cognitive Error." It's an excellent piece forthcoming in the Brooklyn Law Review, and I encourage everyone to check out. Drawing on the social sciences (psychology, in particular), the article convincingly urges that "psychological phenomena . . . undercut arguments for stare decisis." As the Abstract notes:
For hundreds of years, the practice of stare decisis - a court's adherence to prior decisions in similar cases - has guided the common law. However, recent behavioral evidence suggests that stare decisis, far from enacting society's true preferences with regard to law and policy, may reflect - and exacerbate - our cognitive biases.

The data show that humans are subconsciously primed (among other things) to prefer the status quo, to overvalue existing defaults, to follow others' decisions, and to stick to the well-worn path. We have strong motives to justify existing legal, political, and social systems; to come up with simple explanations for observed phenomena; and to construct coherent narratives for the world around us. Taken together, these and other characteristics suggest that we value precedent not because it is desirable but merely because it exists. Three case studies - analyzing federal district court cases, U.S. Supreme Court cases, and development of American policy on torture - suggest that the theory of stare decisis as a heuristic has substantial explanatory power. In its strongest form, this hypothesis challenges the foundation of common law systems.
Check out the article here.

A Pimped Out Obama? Racist or Not?

A college bar in Connecticut is making news with a cardboard cutout of President Obama that it keeps behind the bar. The problem is that the cutout is adorned with accessories that portray Obama as a pimp. The accessories include gold teeth, a hair pick, a pink woman’s hat, beads and plenty of other “bling.”

My favorite quote comes from the bar owner: “We’re not Russia yet. We’re not North Korea yet. We can still make fun of the president.” Interesting.

Is this harmless fun or is it racism that should not be tolerated?

As if Cancer Wasn't Enough...

The New York Times reported on a lawsuit challenging the Patent Office’s decision to grant a patent on genes associated with an increased risk of breast and ovarian cancer. Myriad Genetics owns the patent on those genes and the testing that measures the risk. If women like Genae Girard, the thirty-nine year old battling breast cancer who brought the suit, wish to determine their risk, Myriad is the only place to go.

Can someone really patent our DNA? The argument made by companies like Myriad is that they have done something extra that has “made the genes more than nature's work.” The temporary monopoly provided by the patent is seen as a reward for the company’s investment in research and development. Although this reasoning may be superficially appealing, is it really what is best for the medical community?

Having only one provider of this genetic testing may promote mediocrity. The risks of patent infringement lawsuits prevent other laboratories from improving the tests. Additionally, there are patients who cannot afford Myriad’s high cost. Other labs are capable of providing the tests for a cheaper cost. Should a patient concerned with their cancer risk really be prevented from obtaining an affordable test because of patent laws?

This suit raises many interesting questions to which there are no easy answers. The companies that research and develop the genes, along with the risk testing technique, should obviously be rewarded. This does promote the advancement of medical technology. But should the “reward” really obstruct a patient’s access to essential, life-saving tests? Should others be prevented from learning more about the genes and improving the testing method? What do you think? I have a feeling that these questions will be at the forefront of litigation for a long time.

Tuesday, May 12, 2009

Want a SCOTUS Clerkship? Better Not Go to AU...

Justice Scalia made a point of shooting down the dreams of an American University Law Student, when he explained why she would likely never have a shot at a Supreme Court clerkship. As the New York Times reports, Justice Scalia--while giving a speech on administrative law at AU Law School--gave this student a short summary of what it really takes to be a Supreme Court clerk: doing extremely well at a top law school. "You can't make a sow's ear out of a silk purse," opined Justice Scalia in explaining why he "[is] going to be picking from the law schools that basically are the hardest to get into."

Justice Scalia admitted, however, that one of his best clerks, now 6th Circuit Judge Jeffrey Sutton, was a graduate of wait for it . . . "The" Ohio State University (Law School). Scalia noted, of course, that he would not have hired Jeff Sutton if he had applied directly. Instead, Judge Sutton "snuck" into his chambers after his Justice, Lewis Powell, resigned before he could begin his clerkship. Scalia's explanation speaks for itself:
"[I] wouldn’t have hired Jeff Sutton. For God’s sake, he went to Ohio State! And he’s one of the very best law clerks I ever had."
Okay. So Justice Scalia does not think it prudent to hire clerks from "non-top" law schools, but one of his best clerks ever was a graduate of (what Justice Scalia considers to be) such a law school? Am I missing something?

I understand the rationale for hiring clerks from the top law schools in the country, but holding a strict myopic view in this regard will (inevitably, I think) cause Judges to miss out on great talent.

Saturday, May 9, 2009

Aussie Attorney Undergoes Surgery to Be "Taken Seriously"

Becoming an attorney is expensive. Just ask Hajnal Ban, a "soon-to-be Queensland lawyer" who had "her legs broken and stretched in a bid to be taken seriously." According to The New Lawyer:
Ban . . . was worried her 5ft1in height would damage her credibility as she entered the legal profession and later went into politics. She paid the Ilizarov orthopedic clinic in Kurgan, Russia, the equivalent of $37,806 to break both legs in four places and stretch them every day for nine months.
What a painful, costly way to improve a problem.

Friday, May 8, 2009

"Swine Flu" Killing "Great Lawyers of Harvard?"

A few weeks ago, in the midst of finals and an apparent pandemic that scared the whole lot of us, a friend passed along this article from Esquire Magazine. The article's an old one, but it poses a very relevant and oft-asked (albeit, in broader strokes) question: "Who's Killing the Great Lawyers of Harvard?" People come to law school for a number of reasons, but usually with the intention of practicing law. Yet, as Esquire explains it, many from Harvard Law's Class of 1990 are no longer practicing law:
A former hippie type now writes the television program The Street and an occasional Ally McBeal. He has no job security, but he's happier than hell and couldn't fathom going back to law. A woman who loved science fiction and crossword puzzles left law to sell cruises and is now a part-time secretary with a temp agency. "A failure, I know," she says, "but I'm finding myself--and at least I'm out of the firms." One partner at one of the country's fanciest firms confides that he's finalizing plans to quit his job. "I'll go crazy if I stay," he says. "But please don't print anything more about me. If my plan folds, I'll still need the firm.
This phenomenon is not limited to Harvard. Many law graduates who obtain legal jobs "quit" the law, and take up other tasks--often successfully--and there's nothing wrong with that. Law school is supposed to open doors, not close them. Yet it does make one wonder why everyone and their brother is dying to leave the legal profession (at least before the economy tanked). There are countless obvious answers: the hours, the stress, etc. Put simply, young lawyers may really be "in trouble."

Let me advance another subtle, yet possible, reason: the law school mentality. Increasingly, students are leaving law school with a compulsive nature that manifests itself in an obsession of self-control. It's a tiring obsession that leads to self-loathing and scorn when we ultimately realize that there are simply some things we cannot control. Swine flu's a good example. The panic was widespread across the globe, but was especially concentrated in our ranks. I'll be candid about it--I was terrified. Not because I thought I was going to get sick or die, but because I couldn't control my fate.

Maybe law graduates who leave the profession are liberated from this Foucault-esque obsession I've observed in myself and my colleagues?

U.S. News Looks Into Brooklyn Law School's Survey Responses

Robert Morse, of U.S. News and World Report, confirms that the magazine is looking into "reports [that] Brooklyn Law School in New York appears to have given U.S. News only its 2008 full-time entering class admission data for the LSAT, undergraduate grade-point average, and applications and acceptances instead of the requested data combining full-time and part-time students for those same variables."

There is certainly much debate over the U.S. News law school rankings methodology, and--in accordance with the common critiques advanced along these lines--the school has responded to the said allegations in an official statement. Specifically, the school claims that some of the alleged inaccurately reported data was simply provided "consistent with [the school's] prior practice . . . [which was to decline] to provide U.S. News with LSAT/GPA information about [its] part-time students," despite the recent (direct) request.

U.S. News is waiting for the ABA to publish its law school data on May 22, in order to "cross check Brooklyn Law School's and other law schools' statistics with the association's official data."

We will keep you updated on any developments in this story.

Wednesday, May 6, 2009

Maine Legalizes Gay Marriage

As the world waits for the California Court's Proposition 8 decision (the demise of which may be "refuted on InTrade"), another state has legalized gay marriage.

MSNBC reports that Maine's Governor, John Baldacci, has signed legislation passed yesterday legalizing gay marriage. Though he had "opposed gay marriage while supporting the idea of civil unions," in the past, Baldacci indicated that he had "come to believe that this is a question of fairness and of equal protection under the law, and that a civil union is not equal to civil marriage."

For those of you keeping track at home, Maine is the fifth state to legalize gay marriage (whether legislatively or via judicial decree) following--most recently--Vermont, and Iowa.

Beating the LSAT: An Interview with Steve Schwartz

For most of our readers, the LSAT is a distant--albeit, lingering--memory. While there are good questions to be asked about its relative value, no one can deny its importance. Simply put, the LSAT makes or breaks a candidate's application.

With the June 2009 LSAT rapidly approaching (sorry for the unwelcome reminder!) we wanted to share some LSAT tips with our readers courtesy of LSAT Blog's Steve Schwartz. Steve is a New York-based LSAT tutor who "started tutoring the LSAT after taking the exam, rocking it, and deciding not to go to law school." He also is the founder of LSAT Blog, a repository of free LSAT tips (cf. Kaplan) which he has maintained for five months. We conducted an e-mail interview with Steve, and found his tips to be very helpful; we're delighted to share them with you.

Our most pressing question was the one many readers have asked: can the LSAT be learned? As Steve explained it:
Without a doubt, the LSAT can be learned. There's no question on that matter. The easiest and fastest way to improve is to become familiar with various LSAT question-types. This doesn't take very long, but the payoff is minimal. The quickest way to see a significant improvement is to learn solid diagramming techniques for the Logic Games. This takes a moderate amount of time. The next step is to understand the LSAT mindset. This is the most difficult task. It's like becoming a Jedi or seeing through the Matrix.
Obtaining this mindset, Steve explained, is innate for some who are "natural LSAT Jedi[s] and score in the 170s on their first LSAT diagnostic." Others, however, are not, but can become "LSAT Jedi[s] after a great deal of review." Given Steve's view of the LSAT as a test that measures skills that could be learned, we asked him to respond to critiques of the test, and chime in on how he thought the LSAT impacted law school performance as a whole. As he noted:
I believe that the LSAT is a good independent predictor of law school performance. People born with the LSAT mindset are likely to do well on the LSAT and in law school. People who intensively prepare for the LSAT and eventually acquire the LSAT mindset are likely to intensively study in law school and eventually get the law school mindset.
This, he explained, was a function of the fact that developing the "LSAT mentality" allows people to:
Learn to be critical and skeptical of arguments, avoid taking things at face value, consider potential alternative causes for any result and potential alternative explanations for any conclusion, devote obsessive attention to detail, understand nuances and apply general principles to specific situations.
Steve also had some pointed tips for pre-law students on how to develop the skills necessary to ace the LSAT. He suggested readers check out his LSAT prep book recommendations, and advised future test takers to "get their hands on several recent PrepTests" as there is "no substitute for reviewing past copies of the LSAT because the exam changes relatively little from year to year."

Moreover, he advised that the biggest impediment to beating the LSAT on test day was the failure of candidates to "adequately prepare." As he noted:
1-2 months is not adequate for the vast majority of students, especially when they have to balance LSAT prep with school or work. Students who shoot for high scores (as well as those shooting for mid-level scores) need time to fully understand the various sections, to develop strategies for attacking them, and to work on pacing and endurance strategies. I recommend that students devote a minimum of 3 months of preparation and that they study on a regular basis during this period of time.
We thank Steve for sharing his thoughts with us, and hope this advice serves those of you taking the LSAT well. Good luck!

Tuesday, May 5, 2009

Is Kaplan Monopolizing the LSAT Test Prep Market?

According to plaintiffs in a federal antitrust class action, "yes." The Courthouse News Service reports that a class has filed suit against Kaplan, alleging that "[it] met with (nonparty) BAR/BRI in August 1997 and agreed not to buy out BAR/BRI or offer bar review courses if BAR/BRI withdrew its Law School Aptitude Test (LSAT) and other exam prep courses, [conduct which subsequently solidified Kaplan's monopoly in the LSAT test prep market]."

The suit builds upon facts that relate to the subject of a 2005 case which involved both Kaplan and BAR/BRI. In that case, a separate class of plaintiffs alleged essentially the same facts--namely, that the "two companies conspired to give West [Publishing Corp.] a monopoly over its BAR/BRI courses and Kaplan less competition for the classes it sold for the Law School Aptitude Test, or LSAT." However, in that case, the district court ultimately approved a $49 million dollar settlement between the parties.

Using the allegations made in the prior case as indicia of a conspiracy to rid the LSAT test prep market of potential competitors, the plaintiffs in this recent action claim that "Kaplan [has subsequently] remained the 'only company offering full-service LSAT preparation courses at the national level" - more than three times the size of the second-most popular course, The Princeton Review's.'" This, they contend, establishes an antitrust violation separate from that alleged in the prior class action.

Accordingly, the ability of the class to recover assumes that the prior settlement agreement did not "cover the effect of the market allocation agreement upon the LSAT preparation market."

We will keep you updated on any developments in this story.

Sunday, May 3, 2009

Dear President Obama...

Please pick an attorney to replace Justice Souter. I know there's always a lot of pressure to pick an "average American" type for the Court, and I respect that. I can also appreciate that having a diversity of perspectives and life experiences will be beneficial for the Court. But let's not go crazy here. The Court is not a political actor--at the least, it's not political in the way the legislative and executive branches are.

So while I'd fully support Obama's decision to follow Senator Leahy's advice and pick "somebody who has had some real-life experience, not just as a judge," I'm troubled by the implications of these kinds of preferences if taken to their logical extremes. Especially given Sen. Leahy's (and other's) expressed desire to "see more people from outside the judicial monastery." It may sound elitist, but this job is not for anyone--it's for someone trained in the law, who understands the law, and is not picking sides based on outcomes.

I can live with a selection who has "real-life experience" (whatever that means), so long as part of that experience involves the training and background to work with complicated, interesting legal issues on a daily basis.