For years South Carolina has had the unfortunate reputation of an inadequate school system. However, from this state came Charles Townes, Nobel Prize winner for the laser and one of America's greatest scientists, and Louis Wright, great scholar and historian, who headed the internationally famous Folger Shakespeare Library in Washington, D.C. for more than 20 years.I beseech the wealthy of South Carolina, bring honor upon yourselves, endow the Charles H. Townes Chair at Columbia University, New York City, where he created the laser, and the Louis B. Wright Chair at Wofford College, Spartanburg. Show the world our reverence for intellectual excellence.
Charles Townes is a young 92 years old. Louis Wright is deceased, but his spirit lingers. He coupled world-class scholarship with masterful writing. Wright's autobiography, Barefoot in Arcadia, is an American classic. To the ancient Greeks, Arcadia was paradise, and Wright's childhood paradise was lower Greenwood County 100 years ago.
Wright's classic and Charles Townes's autobiography, How the Laser Happened, should be required reading of every college freshman in this state.
MoneyLaw heartily endorses the idea that financially fortunate people should honor heroes who are meaningful to them, by reason of geography and/or personal history. At The Cardinal Lawyer, my "institutional" blog, I've exhorted fans of Justice Louis D. Brandeis to honor him by supporting the law school named for him. For reasons I've explained in this forum, I am partial to Matthew Henson, a Maryland-born Arctic explorer who inspired my fourth-grade teacher and for that reason will always inspire me. I've made a pilgrimage to Annapolis to see Henson's statue in the Old State House and would contribute something toward an academic chair named in his memory.It is comforting to see that the good old boys of South Carolina politics are still on their comfortable throne, dictating to the high and low, the policies of the land. It is comforting to know that their power and wisdom even extends to who should be admitted as lawyers. It is comforting to know that their communication system is honed with such fine precision that just a phone call or two from the right elected legislators or legislatively elected judges to the judicially appointed committeeman can correct test scores by other judicially appointed minions so that chosen legislators' and judges' children need not suffer the consequences of lesser mortals.There really are two South Carolinas. In one, good people urge their children to follow the example set by Charles Townes and Louis Wright, and even better people work and give so that other people's children can in fact fulfill their ambitions. In the other, bad people make clandestine phone calls to cover their children's failure on the bar exam, and even worse people pervert the institutions of state government into instruments of corruption. I know which South Carolina is worth living in, worth fighting for, worth defending with our lives and sacred honor.It is indeed comforting to see that divine destiny in South Carolina politics, continues to thrive — albeit under the cover of darkness and struggling to avoid the flashlight of media inquiry. It is very discomforting to know that the law and those who "practice" it are still getting it wrong and that it really still depends on who you know and whose side you are on.
I thought a basic premise was that members of the legal profession and members-to-be are bound to avoid the "appearance of impropriety." But then, I forgot, that there are a totally difference set of rules for judges, legislators and political good old boys and their families and friends. How silly of me.
| College football meltdown, December 1, 2007 | |
|---|---|
| Oklahoma crushes Missouri | Pitt burns WVU's backyard |
The trouble with the coaches' involvement is simple. Their teams stand to benefit. The USA Today poll, a major component of the BCS standings, consists of a survey of "60 head coaches at Division I-A institutions," all of whom "are members of the American Football Coaches Association." This year's USA Today Board of Coaches includes the coaches at Georgia, LSU, and Oklahoma, but not Kansas, Southern California, or Hawaii. It's an obvious flaw in the system, and hitherto no one has pondered how college football is supposed to ensure the legitimacy of Division I-A championships when the henhouse has been entrusted (at least in part) to some, but not all, of the game's wiliest foxes.Calls are increasing for an outside investigation into the state Supreme Court’s decision last month to reverse the grades of 20 people who flunked the latest bar exam — including the children of two prominent officials.
But S.C. law doesn’t allow independent investigations of complaints against the state’s highest court — prompting House Speaker Bobby Harrell to say the time might be right to consider changing that.
In interviews last week with The State, three people — a 2007 Charleston School of Law graduate who flunked the July exam, a federal attorney with S.C. ties and a legal ethics professor at one of the nation’s top law schools [Deborah Rhode of Stanford] — called for an independent investigation into whether the Supreme Court engaged in any misconduct in connection with the exam.
For once, South Carolina might move faster and more rationally than the NCAA. If an investigation comes to pass, hell indeed will have frozen over, and a squadron of pigs, presumably escaping Carolina's barbecue pits, will fly in formation from Rock Hill to Hilton Head.
As soon as I posted my latest commentary on South Carolina's bar exam scandal (parts 1, 2, and 3), I encountered this blog post affiliated with The State Online that raises a truly demoralizing possibility that I had not considered.
But perhaps I have forgotten something fundamental: Hanlon's razor. This folk aphorism reminds us: Never attribute to malice that which can be adequately explained by stupidity. As I've acknowledged elsewhere, never assume malice when stupidity will suffice.Lord have mercy. If indeed this wasn't cronyism under cover of stupidity, but simply stupidity in undiluted form, perhaps South Carolina is in even worse shape than any of us might have imagined. All that said, I stand by my original assessment: Whether the powerful people who perpetrated this scandal were really mean, or really stupid, or (as I continue to believe) really mean and stupid enough to believe that the public would swallow a flamboyantly ludicrous explanation, the people of South Carolina deserve far better.What the court actually did was so nonsensical that I couldn't quite take it in from our news account. . . . As it turned out, it had done exactly what I had thought I'd read: It decided to give that one candidate a free pass on that section of the test, and then gave everybody a free pass on that section, boosting 20 demonstrably unqualified people to the status of attorney at law. . . .
There's no way that the court would turn 20 "fails" to "passes" because of a mistake on one. . . . [T]he court has a higher responsibility to the 4 million people of South Carolina.
This was a serious error in judgment, and to me, worse than any inherent harm based on who made a call to whom.
Lost causes, upon further reflection, may not be as forlorn as they might have first appeared. Not Very Bright's survey of the South Carolina press, including op-ed columns and letters to the editor, reveals a reasonably healthy skepticism among journalists and members of the general public in that state. Despite taking extreme care not to impugn the South Carolina Supreme Court's "integrity," The State is willing to declare that the court "exercised poor judgment" in its handling of South Carolina's July 2007 bar exam. An apparent majority of The State's corresponding readers take even sharper issue with the Supreme Court. A Hilton Head newspaper has argued that the Court's "explanation" of its decision "raises more questions" than it answers. As MoneyLaw has already reported, the Greenville News argues that the Supreme Court's reasoning flunks fifth-grade logic and morality. And then there is this editorial cartoon in The State:
What are you, Jim Chen, Dean of the Louisville Law School, prospective Man of Destiny, going to do about it? The Gang of Five on the SC Supreme Court, is doing what Law does best: speaking power to truth. What are you going to do about it? My bet: nothing more than has appeared on this blog.Mr. Kestor, you lose. You seem to have forgotten that I, having been a "Southern boy fourteen years old," can summon "not once but whenever [I] want[] it" the spirit of that "instant when it's still not yet two o'clock on that July afternoon in 1863." Ambition and action, one and inseparable, now and forever. I'll take my stand.
The members of the Supreme Court shall be elected by a joint public vote of the General Assembly for a term of ten years, and shall continue in office until their successors shall be elected and qualified, and shall be classified so that the term of one of them shall expire every two years. . . .South Carolinians who are willing to hold their Supreme Court Justices accountable have no direct recourse at the ballot box. They must rely on members of the General Assembly to do their work. One of the chief players in this morality play, the Judiciary Committee chairman, is unlikely to take any action that would imperil the Supreme Court seats of the Justices who ordered his daughter admitted to the bar.
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. . . .What we now need is a comparable amendment to the South Caroina Constitution.
The members of the Supreme Court shall be elected byReplacing the existing phrase, "a joint public vote of the General Assembly," with these words, "the qualified electors of the State," is enough to transform the South Carolina Supreme Court into a body chosen directly by the voters of South Carolina. I've recommended a halving of the Justices' terms, strictly on the sense that a decade is an extremely long time for anyone to serve, with no accountability besides impeachment, on a putatively democratic tribunal.a joint public vote of the General Assemblythe qualified electors of the State for a term oftenfive years, and shall continue in office until their successors shall be elected and qualified, and shall be classified so that the term of one of them shall expire everytwo yearsyear. . . .
Any amendment or amendments to this Constitution may be proposed in the Senate or House of Representatives. . . . The amendment may delete, revise, and transpose provisions from other articles of the Constitution provided the provisions are germane to the subject matter of the article being revised or being proposed. If it is agreed to by two-thirds of the members elected to each House, the amendment or amendments must be entered on the Journals respectively, with the yeas and nays taken on it and must be submitted to the qualified electors of the State at the next general election for Representatives. If a majority of the electors qualified to vote for members of the General Assembly voting on the question vote in favor of the amendment or amendments and a majority of each branch of the next General Assembly, after the election and before another, ratify the amendment or amendments, by yeas and nays, they become part of the Constitution. The amendment or amendments must be read three times, on three several days, in each House.Why do I think South Carolina's General Assembly would amend the state constitution when I concede that they are unlikely to be responsive to direct challenges to the incumbent members of the Supreme Court? Because the case for reforming the Supreme Court's structure is worthy and can — and should — be advanced without reference to this year's bar exam scandal. I'll couch this sentiment in language that the Justices themselves would recognize and, mutandis mutandi, very recently adopted as their own:
No consideration will be given to the identity of any Justice who would stand to suffer from this action. Moreover, this action is not influenced by any appeal, campaign, or public or private outcry. It is simply deemed the best choice among several alternatives.All together now, South Carolina. Make your Supreme Court Justices stand for election. See how they run.
When I was in fifth grade, my teacher gave us a test on what he called "The Facts of Life." It consisted of simple questions, most of which I don't recall. They were on the order of:This is a simple and persuasive summary of South Carolina's bar exam scandal (MoneyLaw coverage: parts 1, 2, and 3; see also Not Very Bright's superb overview). I tip my hat, once again, to Not Very Bright.
"How many minutes are in an hour?"
"Who was the first president of the United States?"
One of them I do remember was, "How many nickels are in a dollar?"
I beamed with pride when Mr. Gelhar announced I was the first in the class to get a perfect score on that test as he graded them at the front of the room. I walked to his desk, fetched my graded paper and took it back to my chair where I reviewed my answers, reveling in the glory of that perfect score. Until, that is, I got to my answer to how many nickels were in a dollar: 50. In the rush of grading the papers as we turned them in, my teacher had accidentally marked that incorrect answer as being correct.
I can't remember what the consequences of my error were, or even if I admitted that the grading was wrong. But I do know this much: If the S.C. Supreme Court had been grading those papers, everyone in the class would have been given a pass on that question. . . .
So, if I read this right, because one person was inadvertently passed, 20 people who legitimately did not pass were given a free pass to become lawyers. That's no knock on the 20: The bar exam is intentionally difficult, and not passing it is nothing to be ashamed of. Test takers are allowed to try again.
But it seems almost inexcusable that the court would say that because one person's exam was recorded wrong, 20 whose exams were recorded correctly (as failures) would be allowed to pass.
I quote again from Wikipedia in summarizing the tenets of the Lost Cause:The Lost Cause is the name commonly given to a literary movement that sought to reconcile the traditional society of the Southern United States to the defeat of the Confederate States of America in the Civil War of 1861–1865. Those who contributed to the movement tended to portray the Confederacy's cause as noble and most of the Confederacy's leaders as examplars of old-fashioned chivalry, defeated by the Union armies not through superior military skill, but by overwhelming force.
As I write these words in Louisville, Kentucky, a city that is to the American South as the Free City of Danzig was to the Weimar Republic, this insight comes to mind: Die sogennante «Lost Cause» ist unsere Dolchstoßlegende.For every Southern boy fourteen years old, not once but whenever he wants it, there is the instant when it's still not yet two o'clock on that July afternoon in 1863, the brigades are in position behind the rail fence, the guns are laid and ready in the woods and the furled flags are already loosened to break out and Pickett himself with his long oiled ringlets and his hat in one hand probably and his sword in the other looking up the hill waiting for Longstreet to give the word and it's all in the balance, it hasn't happened yet, it hasn't even begun yet, it not only hasn't begun yet but there is still time for it not to begin against that position and those circumstances which made more men than Garnett and Kemper and Armistead and Wilcox look grave yet it's going to begin, we all know that, we have come too far with too much at stake and that moment doesn't need even a fourteen-year-old boy to think This time. Maybe this time with all this much to lose than all this much to gain: Pennsylvania, Maryland, the world, the golden dome of Washington itself to crown with desperate and unbelievable victory the desperate gamble, the cast made two years ago.
And so the leading body of lawyers in South Carolina retreats, as defeated as the Army of Northern Virginia on July 4, 1863, from its confrontation with the South Carolina Supreme Court.The South Carolina Bar appreciates the candor and responsiveness of the Supreme Court in its recent statement regarding the bar examination grading error. The Bar recognizes that the Court had no obligation to explain its decision. Indeed, judicial independence and impartiality require the Court to be deliberative and to render opinions apart from external considerations. However, in making the additional statement, the Court has put to rest any speculation concerning the facts. The Statement further exemplifies the conscientiousness with which the Court addresses all the important matters that come before it. The Bar is confident that the Court has and will continue to maintain the integrity of the bar admissions process.
Unlike its predecessor in Southern history, this Lost Cause has merit. 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.
On the eve of Thanksgiving 2007, MoneyLaw will memorialize this episode. As soon as I finish writing this post, I will take pains to place what I am going to call my South Carolina bar exam trilogy in this weblog's sidebar. What happened here was disgraceful. It was scandalous. As a Southerner and a lawyer, I am ashamed.The South Carolina Supreme Court has finally spoken. But that state's bar exam controversy is still with us.
According to The State's account, the Supreme Court's November 20 statement came as a surprise to the chairman of South Carolina's bar examiners: "Board chairman George Hearn told The State last week that no one from the high court nor any of his examiners reported the scoring error to him after the scores were released initially." Moreover, as The State has steadfastly reported, the court's decision to reverse the final grades represents an "apparent[] violat[ion] [of] its own March order, in which it established a rule that said, 'The results reported by the Board of Law Examiners are final and no applicant shall be allowed to seek re-grading or any other review of the results of the examination."I’d be interested in someone smarter than myself making sense of why you would pass twenty persons who you knew didn’t meet the qualifications to be a lawyer in order to fix a “transcription error” for one person. And why if your goal is to allow that one erroneously-passed person to remain “passed,” you simply wouldn’t leave it be rather than throwing out a section? And how does this square with the Facebook page and the Harrison and Burch interviews admitting contact with the Court and/or examiner?Why indeed. These steps, which seem eminently logical, appear to have lain far, far beyond the consideration of South Carolina's highest court:
I think that the coverage of these two bar exam news items on the Feminist Law Professors blog hits the sweet spot of truth. It may be true, as Bridget Crawford suggests, that New York's imputed bar exam scores are brewing up a six-pack of trouble. If so, then South Carolina has enough suds on hand to intoxicate everyone who will be watching this weekend's football showdown between the University of South Carolina Gamecocks and the Clemson Tigers. Ann Bartow correctly calls South Carolina's situation a "scandal." South Carolina's leading newspaper describes the episode as "a mess for everyone."
The South Carolina Supreme Court is the only entity that can end the embarrassment. Until that court explains the evident departure from its own rules, which appear to prohibit this very sort of intrusion into the bar exam process, it allows forums such as Above the Law (here and here) and FITSNews for Now (here and here and here) to define the terms on which this matter will be discussed.
