This year, more than any other, law students will obsess over the grades they receive under the blind assumption that their grades are the only standing between the breadline and the winner’s circle.  They are far more attuned than lawyers can imagine to the layoffs, outsourcing and pay cuts in law firms across the country: this was the money-back guarantee of law school if only one got the grades. 

But what does a law professor think of grades?  This never makes it onto the students’ radar, since they are the Big Kahunas who know all the integral secrets of law that they, lowly students, must absorb fully to win the prize.  Dave Hoffman at Concurring Opinions shares the secret.

“A” exams validate professors’ vanity by suggesting that the exam made sense & fairly tested the course. The rest of the pile makes us feel either like terrible teachers, or gob-smacked fools who asked incomprehensible questions. Therefore, the goal of a test taker should be to write an answer that makes the exam seem like it was internally coherent. This is not the same as trying to guess the professor’s politics and bringing vomit back to the dog.

Students only consider a slice, make that a sliver, of the law school pie when they think about grades.  They only think about themselves, their future, their success.  Lawprofs, on the other hand, think about their own validation.  Grades are proof that lawprofs succeeded, or failed, the pedagogical test.  Lawprofs hate to fail.  Who doesn’t.

But it’s a bigger issue for lawprofs than the students could possibly know. It’s the way they feel about their professors when they fill out the forms that comprise the USN&WR ratings, the ones that everyone in or trying to get in to academia study in excruciating detail, hating yet secreting loving when their ranking goes up one or two places.  To the dean, it’s cash.  To the Lawprof, it’s prestige.  To all, its validation that they are winners, not losers. 

Around this time each year, it’s important to provide perspective to law students about the importance of grades.  There will be many, if not most, whose entire world will crash around their shoulders when they look at the letter across from their secret student number and see rounded lines rather than the pure, straight, beautiful angled legs of the “A”.  There will be others who can hardly catch their breath as they see the letter that they’ve been told their entire life is the payoff for hard work, playing the game properly, sacrifice and persistence.  It’s the brass ring, and it’s within their grasp.  They’ve earned it and now it’s their moment to grab it.

Here’s the bad news, students.  There are more “A”s than jobs for students with “A”s.  There are more top ten percenters than jobs for top ten percenters.  The really dirty secret, and this hasn’t changed as a result of economic circumstances at all, is that the life you thought you were promised paid very well, was never really what you wanted anyway, and your chances of surviving it intact and happy were quite slim.  Your mommies and daddies wanted you to enjoy a life of financial security, if quiet misery, but even that’s no longer on the table. 

Here’s the good news, students.  The death of the promise has opened up a world of opportunity for you that would never have been considered a mere year ago.  No one could pass up the top of the pay scale, despite facing the loss of any semblance of a life or professional accomplishment.  Now that the opportunity is gone for most of you, you are free to leave the hallowed halls and become something that you could never have done before:  Lawyers.

You can meet real people.  You can practice law the way it’s described in fairy tales.  You can be like the people on TV, going into real courtrooms and dealing with real issues and arguing for or against anything you want.  You can do all the things no one would ever conceive of letting you do in the big money jobs.  You can be a lawyer.

And what of grades?  They mean nothing.  No one, but no one, will ever ask you what your grade in torts was when you leave the shelter of the academy.  No one cares what school you went to.  No one cares whether you were law review.  No one cares about the Coif, the Note, the Moot Court or the Am Jur prize.  In the snap of fingers, they disappear.  The only thing anyone cares about in the real world is whether you can analyze a situation quickly and effectively, devise a viable strategy and put it to work to win your cause.  The kid with the “C” in criminal pro is every bit the star when he gets a dismissal, and all is forgotten.

After you leave law school, you may look over your shoulder once or twice, but that is as far as it goes.  Fond memories of the good times, but the glory days of law school are now the business of other, younger followers.  Your eyes are focused straight ahead, on the many years you will spend practicing law.  That’s all that matters now.

But those giants in the front of the classroom will still be there long after you’ve forgotten your grade.  Some will seek the validation they feel from your getting an “A”.  A few will take comfort in knowing that you are out there, in the world of practicing lawyers, capable of doing what clients, courts and society expects of you, because of the things they taught you in law school.  They gave you the only grade that really matters.

To all the 3Ls this year, shake off the fear and loathing.  You will be lawyers.  Make use of it.  And when your grades come out, ignore them.  They don’t matter at all.  Not to real lawyers.

Simon Owen at Blogasm alerted me to the newest profession,  If you thought professional blogger was pushing things, consider professional twitterer.  Simon points to this blurb in the SkyMall magazine, the one everybody reads when crushing boredom overcomes good judgment in the steerage seats of an airplane.

In 2007, SkyMall embarked on an aggressive marketing campaign that drove up its Web sales. In January, SkyMall ventured into social networking territory, hiring an official corporate Twitterer.

What distinguishes this twitterer is not merely the pseudonymous assistance, but that it’s the “official corporate” one.  This, of course, means that there is an Executive Vice President of Twittering, who answered to the Senior Executive Vice President of Twittering.  While it’s conceivable that there is a Twitter Divisional President, that seems silly.  Who would have a division dedicated to twits?

Aside from the fact that everybody who’s anybody is now on twitter, because it is the thing to do for all the really cool kids (and grandmothers, and corporations, and politicians, and nobodies), the fact that corporations have official twitterers, sitting there every day, all day long, twitting the company line is just pathetic.  You can’t help but smile, if not laugh out loud, at the idea of some card-carrying member of the Slackoisie punching promos at 140 characters a shot onto a keyboard all day long.

Of course, now that every very busy celebrity is busily empowering his or her fan base to follow their moments of transitory embarrassment on twitter, the potential of a full-blown profession of twitterers is coming to fruition.  I mean, seriously, how can Lindsay Lohan find the time to get drunk and still twit about her love life?  And all the time Britney spends at the auto repair shop must take her focus off twitter momentarily.  Ashton, on the other hand, appears to multi-task well, plus it’s hard to let your twitter assistant enjoy a view of wife Demi when he’s supposed to be a serious professional twitterer.

The rush to join in the newest, coolest thing around has its downside.  It takes time and, despite the compulsion to be involved, doesn’t actually serve any purpose beyond racking up followers and making sure you aren’t the only doofus left out of the newest, coolest thing around.  I still don’t know what the prize is for having the most following, but there has to be one or all these otherwise senscient people wouldn’t be trying so desperately hard to get them.

And since I am a professional, and this is the newest, coolest profession, I wish to announce that I too am available to twit for you.  At my standard rate.  I can’t promise to gain as many followers as somebody like @guykawasaki, I can assure you that my twits will be better than Ashton Kutcher’s (who, I might add, is not following me, no doubt for fear of twitting inadequacy).  Any takers?

Via Eugene Volokh, the Democratic Congresswoman from California’s 39th, Linda T. Sanchez, has proposed a new law to criminalize all that nasty cyberbullying we’ve heard so much about.  Just so you know. she is a lawyer, so she must have a clue what she’s doing when she proposes a law, right?

The bill is warmly entitled the Megan Meier Cyberbullying Prevention Act, making it yet another Megan’s Law, and has 14 co-sponsors.  It’s brief and to the point:

Sec. 881. Cyberbullying

`(a) Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.

`(b) As used in this section–

`(1) the term `communication’ means the electronic transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received; and

`(2) the term `electronic means’ means any equipment dependent on electrical power to access an information service, including email, instant messaging, blogs, websites, telephones, and text messages.’.

Just so we’re clear, this means you.  You see, when you write a blog post, post a comment, write on your facebook wall or even send an IM or email, it’s a communication sent by electronic means.  I’m doing it now, and you do it all the time. We all do.  It’s how we do things these days.  And it’s covered.

So what is cyberbullying?  It’s using electronic means to “support severe, repeated, and hostile behavior.”  No, I have no clue what this means either.  The only word that appears to be semi-objective is repeated, meaning that it requires more than one “severe and hostile” transmission, but what constitutes, and who decides what constitutes, “severe and hostile” remains a mystery.

The problem isn’t Rep. Sanchez’s motives, which is to provide a law to prosecute someone who engaged in the conduct committed by Lori Drew, particularly given how poor the fit of the crime for which she stands convicted.  Many believe that it was a wrong that needs to be righted.  The problem is finding a way to fix the problem that doesn’t sweep in about a zillion people who have done nothing more than expressed a view of displeasure, anger or frustration by electronic means.

It’s one thing for an adult to attack and emotionally undermine a teenager, and quite another to criminalize legitimate free speech that some might find unpleasant.  The sweeping breadth of this proposed law, combined with its shocking vagueness, covers it all, and then some.  As for the “intent” section, intent is shown by the act, and merely a matter of permissible inference.  It adds an element but does nothing to limit the application.

It’s hard to imagine that a law this ridiculously poorly written stands a chance of passage.  Even if it were to pass, it seems impossible that it would be held constitutional, given it’s inane overbreadth.  But it does serve to warn how difficult it will be to frame a law that will prevent the wrong without criminalizing just about every other expression of anger, unhappiness or dissatisfaction.

So next time someone feels compelled to post two comments here about how you disagree with me, consider the possibility that you might hurt my feelings, forcing me to complain to the feds that you have cyberbullied me and need a good spanking.  And after all, it’s only two years in prison.  Or in cyber terms, 15 versions of the Iphone. 

The New York Law Journal announced that Jonathon Lippman, the new Chief Judge of the Court of Appeals, has called for the formation of a commission to study wrongful convictions.  Sound familiar?  It should. 

Less than a year ago, the New York State Bar Association formed a commission for the same purpose, headed by then criminal defense lawyer, now judge, Barry Kamins.  The NYSBA  approved the commission report less than a month ago.  So here we go again?

The chief judge said in an interview that he wants to form the “Justice Task Force” as a permanent entity under the auspices of the judiciary because judges have as much to lose as anyone in the criminal justice system when people are convicted of crimes they do not commit.

“What could be worse for the branch of government whose constitutional responsibility is to administer justice than to have an injustice, a wrongful conviction?” Judge Lippman said.

What could be worse indeed.Well, a commission on wrongful convictions that neglected to include the one leg of the tripod that was closest to the problem, knew the most about the problem and could inject the most reasoned, experienced and viable solutions to the problem.  So who will be included in this commission?

Judge Theodore T. Jones Jr. of the Court of Appeals and Westchester County District Attorney Janet DiFiore will chair the task force, Judge Lippman said, adding that both have wide-ranging experience in the criminal justice system. Judge Jones was a criminal defense attorney before he became a judge and Ms. DiFiore was a Supreme Court justice before her 2005 election as district attorney.

The chief judge said the Codes Committee chairman in the two chambers of the Legislature, Assemblyman Joseph Lentol, D-Brooklyn, and Senator Eric Schneiderman, D-Manhattan, also have agreed to sit on the panel, as has Denise O’Donnell, Mr. Paterson’s commissioner of the Division of Criminal Justice Services.

So we have a judge, a prosecutor, two legislators and the governor’s commission of Criminal Justice Services.  Fine choices all.  But there’s something missing.  

Judge Lippman said it is important that all three branches of state government be represented on the task force and while panels have been established in other states to review wrongful convictions, he said the New York group would be the first to incorporate judges, lawmakers, executive branch officials, prosecutors, defense attorneys and others in the criminal justice system.

That’s it.  Criminal defense lawyers.  Thankfully, Judge Lippman acknowledges that they have a role to play in the system, along with the more important official people who comprise government’s view of the powerful voices.  At least we were actually mentioned, and not relegated to the “others” category.

While naming a commission, ordinarily a very “government” thing to do, would satisfy what small public zeal there might be to address the vexing problem of putting innocent people in prison, the significance is only as great as the commission’s ability to provide meaningful solutions to the problem.  Otherwise, it’s just another dog and pony show. 

The hard, cold reality is that the influences that go into any recommendations of such a standing commission will only be as good as the input of its members, and when the membership is lopsided, meaning comprised of the “official” side of life and devoid of those who have actual knowledge of the ugly underbelly of criminal justice, it’s doomed to reflect the governmental excuses, policy concerns and inertia.  Who stands up for the innocent in this commission?  Who tells the official member that their baby is ugly?

But Judge Lippman knows something that most of us forget.  He’s well versed from his years as Chief Administrative Judge in the ways of Albany, a place where Diogenes gave up.  As this commission comes on the heels of the well known and well regarded NYSBA commission, led by Barry Kamins, it’s purpose may well be somewhat different than reinventing the wheel.  The constitution of the commission may be carefully calculated to bring the players of change into the same room to accomplish something that rarely happens in Albany, a buy in from the three branches of government in reform.

Regardless of how many really good ideas are discussed by the members of the commission, and actually serve the goals of reducing the conviction of innocent people, it means nothing if it can’t find its way into law.  It means nothing if it can’t find its way into law in effective and meaningful legislation.  It’s a long, winding path from commission report to the statutes, and I suspect that no one appreciates this better than Judge Lippman.

If this is the case, then perhaps this commission is designed as an effective means of moving from conceptual to actual reform with the support of the players who can actually make it happen.  Perhaps this will be the commission that has real potential to make the changes and improvements that have long been recognized but never mustered the necessary support of the always wrangling fingers of government.  Maybe it will happen this time.

But a word of caution.  In building the camel of consensus, as commission invariably do, the input of the criminal defense bar is crucial to keep the more “official” influences honest.  While including Judge Kamins is a good start, he’s now part of the official world and shouldn’t be placed in the position of having to tussle with those who hold his future in their hands.  The commission must include real, honest-to-God, defense lawyers.  And not the criminal bar association glad-handing types, or the usual suspects, or the life-long prosecutors who became criminal defense lawyers 12 second ago, but real, hard-core criminal defense lawyers.

No one knows more about, or will speak more zealously for, the convicted innocent and the systemic problems that cause them to be convicted, then the men and women who fight the frustrating and never-ending battles in the trenches, day after day, and watch as the official world shrugs off another life lost to the beloved way things are always done.  Without them, the best, most politically effective commission is doomed to failure, for its recommendations may reach the governor’s desk but its accomplishments will be illusory.  Let’s make this one for real.  For once.

Amongst the daily deluge of press releases, trying to get me to post a flattering story about someone else’s story, came one from a flack for the Daily Beast.  This was curious, since I really didn’t see why the Daily Beast needed my attention.  But the reason quickly became clear.  It wasn’t so much a Daily Beast issue, but a plea for recognition of a post authored by one of the least rational, most ridiculous legal pseudo-pundits around.

Who makes Nancy Grace appear almost reasonable?  That’s right!  It’s Wendy Murphy!  Woo hoo!  With screaming headlines came this effort to prove that one can go from NFL Cheerleader to blithering idiot in one lifetime:

Former sex crimes prosecutor Wendy Murphy says the grisly murders of Caylee Anthony and Sandra Cantu may have been linked to the child-porn industry—and their killers likely didn’t act alone.

The predominant word in this modern day acid-trip is “maybe”.  Maybe this happened.  Maybe this is why.  Maybe, maybe, maybe.  You think I jest?

Maybe Casey Anthony didn’t kill Caylee. Maybe she died while engaged in some nefarious business—and Casey was forced to dispose of her child’s body. Maybe Huckaby found herself in a similar situation.

Told ya.  So what is this crackpots thoughts on the subject?  That the mothers of these dead children didn’t actually kill them, but sold them to the child-porn industry because they were desperate for money.  That the mothers are the “little people” being left to take the rap by the porn industry big shots.  And what is there to back this up?

Both cases also include evidence that children have been sedated, and experts in the child porn business know that drugs like valium and chloroform are commonly used to make young victims compliant. Such drugs also affect the memory, so victims have no recall of the abuse when the drugs wear off—a nice benefit if you’re trying not to get caught.

Sedatives were taken the Anthony home in connection with a search warrant issued after Caylee’s body was found. Police can’t take drugs from someone’s home without reason to believe they’re tied to a crime.

Mind you, this is coming from a woman who bills herself as a scholar.

Wendy is a former child abuse and sex crimes prosecutor who teaches at New England Law|Boston. A Visiting Scholar at Harvard Law School from 02-03, Wendy is an impact litigator who specializes in the representation of crime victims, women and children.

Now most of us can conceive of crazy stories, with the most tenuous of connections to both fact and reality, drawing fantastic conclusions based upon wild speculation.  We call these fairy tales, and we read them to our children before bed provided they aren’t too scary.  If they are too scary, they might keep the kids up at night, afraid of what’s lurking in the shadows.  That wouldn’t be very good.  But we tell our children that it isn’t real, and by doing so begin to train the synapses in their brains to connect facts to fears, and by doing so, eliminate them. 

And yet there are hot chicks like Wendy Murphy who somehow manage to find room for their strange and detached ramblings on media venues other than FOX.  The question becomes, how can this happen?  Does no one read what they write, listen to what they say, before deciding that it’s something that bears a public airing?  When we provide someone like Wendy Murphy with a platform to spout stuff like this, we give her credibility.  Should the Flat Earth Society get equal time?

My own beliefs notwithstanding, I think it is beneficial to have and know alternative perspectives and philosophies.  Whether we agree or not, we learn and possibly expand our thoughts beyond our own limitations.  But that doesn’t mean that every wacko around has something worth publishing.  Yet Wendy Murphy gets play, and to those inclined to believe that former NFL cheerleaders (and I mention this because she does every time she promotes herself) represent the height of intellectual accomplishment, she’s actually taken seriously.  Can anyone from Harvard explain to me what she was doing up there in 2002 to 2003? 

Like a child, I too have a fear of what might be lurking in the shadows.  I fear it might be Wendy Murphy.  She’s scary.

During oral argument before the New York Court of Appeals this week, I contended that lawyers sometimes do things for other than mercenary motives.  The reaction broke my heart.  After a chuckle all around, the chorus was, “No, seriously.”  It was dismissed out of hand and never considered again.

While not a critical component of my argument, it mattered to me.  My position was the lawyers write about the law for reasons having nothing to do with marketing.  For those of you who have seen some of my anti-marketing posts, this will come as no shock.  That it was considered an outlandish position by the judges of New York’s highest court does.  At least to me.

In preparation, I had a list of reasons why a lawyer might write for reasons other than marketing.  I also had a list of comparables, like judges who write about the law though they certainly aren’t looking for more business, and public defenders who do so even though more business is the last thing they need.  Law professors would fall into that category, but only after they’ve gotten tenure.  The newer ones need to prove themselves by writing, so they don’t count.

I never had the chance to go to my list.  I tried.  I started to recite my reasons, but was immediately cut off.  To the extent that any play was given the notion at all, it was to suggest that sheer, monumental ego might push a lawyer to write something without visions of a cash register on the other end.  It was still pejorative, as if the flip side of crass, mercenary motives was crass, overblown ego, with absolutely nothing in between.

With regularity, lawyers approach the blawgosphere in exactly the way that marketers tell them.  The framework of their efforts is guided by SEO and potential client palatability.  When I’ve done panel discussions on “how to blog,” the questions are rigid and silly, such as, “How many posts a week do I need to do to get clients?”  I want to tell them to post as frequently as they beat their wife, but I know they won’t see the irony in my retort.

It would be one thing for the lawyer cabal conspiracy theorists to posit that we are all about money, since they see nothing beneficial to come from our existence.  But these are judges.  Judges!  And they think no better of lawyers than rug salesmen.  Maybe even worse.

There are some lawyers who write for the primary purpose of self-expression, because they have thoughts every day and feel compelled to put them into words because that’s how they express themselves.  They enjoy the conversation, at least when it doesn’t get too stupid.  There are some lawyers who feel distinctly dissatisfied with the limitations imposed on their efforts by courts and clients, and look for a more efficacious means of fulfilling the purposes that drove them toward the practice of law.  They have things to say, and their ability to say them within the framework of a law practice is unfulfilling.  And so they write.

There are some lawyers who do their writing on a blawg.  If one was to read the blawg, the inescapable conclusion is that they aren’t writing for the purpose of marketing themselves.  If anything, as my buddy Norm once noted, the blawg would scare clients away if anything.  Clearly, marketing could not be their purpose.  But if not marketing, then what?

The reaction by the judges of the New York Court of Appeals is my nightmare.  What I do cannot be, from their perspective.  Or at least, is so very far from the norm that it would require special dispensation from the rules that find our profession.  If the judges, men and women who have no horse in the race, are so jaded as to the motives of lawyers that they believe it ridiculous to suggest that some of us might actually have “pure hearts,” a characterization offered as an assumption during the argument, then we have realized the worst fears of our critics.

And I, for one, find myself wholly disconnected with my profession, for I refuse to accept that there is no possibility that any of us have “pure hearts.”  And I will continue to fight those who push lawyers to serve their lowest instincts.

Justice David H. Souter, was the 105th person to get the job of being a judge with none higher, at least from the secular perspective.  Only one of nine, of course, but that’s still a pretty significant vote.  And unlike others, Justice Souter has chosen to close up shop while he is still young, vital and healthy enough to enjoy the benefits of being a rock-climbing former justice.  The manner in which he’s taking his leave reflects dignity, a rare commodity.

Speculation on who the next justice would be began during the Obama campaign, with the natural claims that he would appoint some wild lefty to fill the seat.  To the people complaining, everyone left of Genghis Khan is a wild lefty.  But the greater likelihood is that the politics of identity will play a larger role at first in the pressure to be applied by the various interest groups.  As much as I’m disgusted by the notion that it’s more important that our laws and Constitution be decided by someone based upon immutable and irrelevant characteristics, to ignore this would be folly.

The two initial traits to be demanded are gender and race, with the expectation that the Court needs a second woman and has a glaring hole where a Hispanic should be.  Why this is so remains unclear, since neither females nor Latinos are some monolithic group where the members are fungible.  Did we learn nothing from Clarence Thomas?  It is particularly galling that, as we argue and some even believe that gender and race should become nonexistent factors in America, we continue to harp on them unmercifully.  Black president aside, we’re still a ways off from being gender and color blind. 

The advocates of a woman or a Hispanic will explain that by putting one on the Court, we will inure people to the hard fact that they are here, they are as worthy as anyone else and they are ready to take their place as leaders.  To say this is to suggest that it’s a question.  There is no question.  We’ve had female Supreme Court justices already, and we know they can do the job.  There has been no Hispanic justice, but does anyone really think that Hispanics can’t do the job?  I think we’re past that.

The next question is political ideology, which is the one that seems most interesting from where I sit.  I remember a day when the Court really stretched its wings on the issues of civil rights and personal freedom.  A fellow named Earl Warren was in charge, and decisions made by his Court are still household names and fix the parameters of the world we enjoy.  How many Supreme Court decisions since Rehnquist put velvet strips on his black robe can be remembered by anyone other than lawprofs and wonks?  Think about it.  The measure of a Supreme Court is the extent to which its work impacted society.  Anything less and it’s just a spaceholder.

I’ve complained that the Supreme Court has lost its function in our society, issuing decisions that decide little and raise more questions than we started.  The whole trend of judicial modesty is sorta nuts; If you open an issue, then give us a complete, useful answer on what to do.  Anything less and you’ve just taken the law and made it a mess for the rest of us to suffer and sort out over the next 20 years, only to learn that some future Court will eventually tell us how we got it all wrong.  Of course, they still won’t tell us what is right, and all the nice men and women who relied upon the Court’s pronouncements to their detriment will have a moral victory, which they can enjoy from their prison cell.

Given how important the Supreme Court could be if only it fulfilled its function, these are the things I urge President Obama to consider in selecting the next justice:

1.  Experience:  Without question, the most important criterion is that a Supreme Court Justice possess a breadth of experience in the real world, including a firm appreciation of how real people live, work, love and behave.  The appointee must understand and appreciate that most people aren’t brilliant, didn’t go to Harvard, can’t grow up to be President and struggle with trying to understand what the right thing to do is so that they can do it. 

They need to know that there is no such thing as “common” sense because there is nothing common about the human experience.  We each possess our own, and extrapolate that to everyone else.  Every time I see a judge hide behind “common sense,” I see a coward and someone lacking in intellectual integrity.  We need a justice who is neither.

Experience isn’t learned from a book, or is something we pretend to have because we’ve read numerous law review articles on the subject.  Experience is gained by being on the street as well as in the courtroom.  The surest path to the bench is to hole oneself up in the wood-paneled rooms of the courthouse.  It’s also the place where one is isolated from real experience and insulated from the real world. 

The next Supreme Court Justice should know what it’s like to listen to the ignorance, fear and craziness of litigant trying to comprehend why the law can’t seem to cure their ills.  The next justice should know how it feels to have a judge try to humiliate them in a courtroom because they wear the robe and get to make the rules.  The next justice should appreciate that the 5+ years between the start and end of child custody proceedings destroys lives and ruins children.  The next justice should know how it feels to be innocent and in prison because some legal fiction was more important than some person’s life.

And for the record, this experience doesn’t come from a few years working as a government lawyer, where none of this experience is ever gained.

2. Intelligence:  A certain level of intelligence is required, but not too much. Intellectual integrity is far more important than intellect.  The law is for real people, not theoretical discussion or doctrinal purity.  Intelligence isn’t a negative, per se, but can be when it interferes with someone’s ability to feel compassion, to appreciate that others may not be or behave in a way that meets the expectations of the Oxford Don or society matron, or to understand what it’s like to live in a world of powerlessness.  Intelligence is often over-rated.  Smart is much better.  Integrity even better than smart. 

3.  A real person: Rarely does anyone climb the ladder of professional importance without it affecting their view of the world.  The unfortunate loss in the process is that they forget, if they ever knew, what it’s like to grab a beer after a hard day’s work.  This is where most of us live, and where we talk about the things that matter.  The bottom line to every decision the Supreme Court issues, or more accurately, should issue if it did its job, is that it must fulfill the expectations of real people.  Real people aren’t afraid to disagree when they disagree.  Real people actually believe in things.  Real people temper their belief with the understanding of how it affects real people.  Real people are not idealogues.

No, this is not a plug for Joe Six-Pack, the fictional beer swiller who wants courts to vindicate his prejudices without having to suffer the indignity of thought.  This is a plug for protecting all the Joe Six-Packs out there from themselves, knowing how stupid and thoughtless people can be, how prejudice pervades their opinions, how self-serving their choices. 

There are, of course, many others characteristics that could be brought into the mix, but these are the main considerations.  The rest are the details, and they can be debated ad naseum. 

This said, the person who stands poised to be the right choice for the Supreme Court of the United
States of America is 2nd Circuit Judge Sonia Sotomayor. 

And as it happens, she’s female and Hispanic, for whatever that’s worth.