On October 12, 2020, the United States Senate started Supreme Court confirmation hearings for Judge Amy Coney Barrett, picked by President Trump to replace the progressive legal luminary, Justice Ruth Bader Ginsburg who died barely 3 weeks ago on September 18, 2020. The hearings staged by the Republican dominated Senate occurs barely 3 weeks before the US Presidential elections, which the polls indicate will likely finally remove Donald Trump from the White House, after surviving an impeachment at the beginning of the year.
Justice Ginsburg had been approved by the Senate with a vote of 96-3 and we will not need a crystal ball to safely predict that while Judge Barrett will likely be confirmed as the next Supreme Court Justice, she is in all certainty not going to receive an overwhelming bipartisan confirmation like Ginsburg did, given the polarized Senate.
Furthermore, it is a departure from the 293-day boycott by the Senate Republican majority to preclude Judge Merrick Garland’s Supreme Court confirmation hearing until his nomination expired with the end of the 114th Congress on January 3, 2017. Ostensibly, the long boycott was to allow a new President to do the honor of selecting the next SCOTUS justice in an election year since it would supposedly reflect the will of the people.
The hurried selection of Judge Amy Coney Barrett is a rejection of the late Justice Ginsburg’s stated desire that the next SCOTUS pick be nominated only after the election of the next U.S. President. However, as much as I am in awe of Justice Ginsburg as a law school graduate who studied her cases and as a progressive, I admit it is not the place of the legal luminary to choose when her replacement is made. The only way she could have influenced that selection to a modicum of her satisfaction would have been if she had chosen to retire much earlier under President Obama, a Democratic President.
But it was her right to hold the seat until her death—considering she had life tenure. A grave aberration in a land constituted to end the reign of monarchs, ensuring there will be no kings or queens in America. Monarchs with their life tenure get to choose the timing of their succession as well as their successors. No judge is a monarch. I hope in time the correction will be made to eliminate the life tenure of Supreme Court Justices.
Despite the reverence our society bestows upon the Supreme Court Justices, it is unwise to disregard their mortality or attenuate their humanity. Just as the judges wane in physical ability we must recognize that so will their mental acuity wane. A fact which does not justify their life tenure. The judicial giant, Justice Ginsburg who did so much to transform the law as a profession and as it affected women was pivotal as an attorney and on the bench.
Since 1999 she battled cancer—first colon cancer then pancreatic cancer to which she finally succumbed at the age of 87. It becomes inhumane and unjust not to recognize the mortality of the Supreme Court Justices by setting term limits for their tenure like every other public service job in America has.
I sense that a future Justice Amy Coney Barrett may not only shift in her views and prove to support some progressive interpretations of the law, but also may come to influence the Court towards the realization of racial justice. Judge Amy Coney Barrett is the mother of two Black kids by adoption. That is merely a prediction.
My only real consolation at the moment is that the confirmation of the Notre Dame Law School alumna who graduated first in her class as Supreme Court Justice of the United States will break the absolute elitist reign of the Ivy Leagues on the bench.
Even her democratic opponents have all acknowledged that Judge Amy Coney Barrett is qualified as the next US Supreme Court Justice, although no Ginsburg. Prior to Justice Ginsburg another liberal titan and legend on the bench was another non-Ivy Leaguer—Thurgood Marshall who graduated from the historically Black Howard University Law School, when Jim Crow still reigned in the South. Before he became a U.S. Supreme Court Justice, Marshall was responsible for the landmark Brown v. Board which outlawed segregation in public schools and was catalyst to dismantling Jim Crow laws.
There are many highly qualified and brilliant lawyers from reputable law schools that are given short shrift and dismissed from consideration for SCOTUS simply because they are not graduates of Ivy League law schools or their equivalent—Stanford.
The constitution of the Supreme Court as an Ivy League only affair, reflects the growing classist and elitist society that the United States is becoming. It is particularly more irksome considering that the top 3, like Harvard Law School, no longer rank their students nor do they use letter grades. Harvard insists it will not compare its students. So the quality of all Harvard Law graduates is the same—so long as they passed. Which is all but guaranteed once you are admitted.
It means that at least 550 graduates—the number typically in a graduating class at Harvard Law School—are “smarter” than Judge Amy Coney Barrett, given that Harvard is consistently ranked higher on the totem pole compared to her alma mater, Notre Dame Law School, which is 22nd in the US News 2021 ranking. If we factored in the likes of Yale and Stanford and the others at the top which use the pass/fail grading system and do not rank their students, there would be at least 1,500 students supposedly superior to an Amy Coney Barrett in intellectual chops–by extension of the elitist logic. In reality and objective truth this is certainly not the case, and the bogus implications of the Ivy League elitism in the constitution of SCOTUS instantiates our constitutional tragedy, as things stand.
How an egalitarian society that venerates the wisdom of Lincoln, acquired after his hardscrabble life came to accept the dogma that the most coddled and most out of touch people make the wisest judges, is beyond me. The autodidactic Abraham Lincoln who became a lawyer through self-study hardly saw the walls of a school, much less an Ivy League.
And even the wise genius Alexander Hamilton who attended King’s College, (whose name later changed to Columbia University) a school which at the time could not hold a candle to an Oxford or a Cambridge, did not graduate from school although he became a lawyer, and had the most long lasting impact on the character of the U.S. economy and constitution. Hamilton, the poor immigrant orphan born out of wedlock, like Lincoln had a hardscrabble life—far from the privileged existence of most contemporary Ivy League graduates.
It is an egregious fallacy to suggest that the best of the best of all schools are produced by the Ivy Leagues. Let us not forget that while he is no lawyer, Donald Trump is an Ivy League product.
The administration of justice is not done by rocket scientists, but by wise men and women. Wisdom is not acquired by being ensconced in the rarefied halls of a coddled existence, but is forged from the hot embers of experience which cultivated lawyers like Lincoln, Hamilton, and Thurgood Marshall.
Nevertheless, the United States’ legal system remains a jewel which the world looks to. In fact, I came to America over 20 years ago, for one real goal: to study the law in America. I took a circuitous route to get there because of other barriers that U.S. schools had instituted to bar foreigners from acquiring the Juris Doctor (JD) degree.
Thus, the LLM or Master of Laws became established as the token degree for foreign educated lawyers to experience American legal education, while not being able to compete with the Juris Doctor reserved for American persons. I suppose this preserves attorney jobs for American lawyers.
The path for me to learn directly from the preeminent American jurisprudence through the hallowed halls of its law schools was impervious to an average West African, or someone from what was typically called the Third World. However, those barriers that existed in the ‘90s when I came to America, are gradually coming down.
That is one reason why a non-American born non-immigrant person whose parents are from Ghana in West Africa, like Priscilla Bonsu could acquire not just an LLM from the elite Berkeley, but also the American prized JD from a top-ranked US law school—Emory, ranked 24th in the 2021 US News ranking.
It also helps Priscilla that she is German. The German-born Black woman has been forced to undergo a severe culture shock in America such that her identity is constantly challenged by Americans given her distinct West African appearance. Being European to less traveled Americans is a race—it means being white. But this mild culture shock does not deter Priscilla considering her big goals to conquer America.
According to Priscilla, she knew while earning her first degree in law in her native Germany that America was where she wanted to practice law. While it takes at least seven years to earn a first law degree in America, which is a JD—requiring a Bachelor’s degree and then 3 years of law school for the Doctor of Law degree—the process is different in Germany. In Germany unlike the U.S., students can go directly from high school to earn their first law degree, the Majister iuris, which takes 5 years of university studies and then with training to qualify for what is only partially equivalent to the US Bar exam—Erstes Juristisches Staatsexamen or 1. Staatsexamen.
Priscilla had qualified and received the training that got her this far before coming to study and work in the United States—where she is now a Wall Street lawyer at a law firm. I was recently introduced to Priscilla by a mutual friend and I was instantly captivated by her friendly and animated personality.
Although born and raised in Germany, where she has lived all her life, unsurprisingly she speaks perfect English and sounds American with an English twang, which she says she may have acquired from watching English speaking television programs—since she learned English from a German teacher in school. What’s more the polyglot who speaks 5 languages, has barely lived in the United States for four years.
While Priscilla is clear she still identifies as German, and would never trade growing up in Germany for anything in the world since her confidence as a Black woman is partly informed by her identity never being under siege back home, she is excited that she is able to pursue her ambition of being a lawyer in America, where she believes she can fully realize her lofty professional goals in the law.
Priscilla indicates that female lawyers have done a remarkable job in shattering the professional glass ceiling in America—while some challenges remain to be overcome. The Notorious RBG–as Justice Ginsburg is fondly called–was involved in many of the landmark cases shattering that glass ceiling.
However, Priscilla realizes that living in America as a Black woman, means she has to adjust to the scrutiny constantly on her because of her race—something she said she never experienced growing up in Germany. She was simply German, despite being Black.
She first realized this ‘othering’ one day, as she rushed into a bookstore at Berkeley to purchase a souvenir for her dad just before she caught her flight back home to Germany.
“As I walked through the store looking for a Berkeley T-Shirt to buy for my dad, I suddenly realized the security guard at the store was following me around,” said the European national.
“I am sorry you experienced that. We all do,” I try to console her.
“No, I don’t let that bother me. I am a happy person, and I know who I am,” Priscilla says firmly.
From her outgoing personality and eagerness to converse with new people while still being cool, I see what she means. As we walked through the Columbia University campus and I introduce her to a former professor of mine, I see what Priscilla means when she calls herself a global citizen. She is instantly likable. It is no mean feat that despite its apparent barriers to outsiders, American jurisprudence remains attractive to brilliant internationals and global citizens like Priscilla—who wish to view America as the standard for the world.
However, Priscilla bristles at comments claiming that America has the best legal system in the world, especially when uttered by people who have never gone out to learn under another country’s legal system to be in a position to make such comparisons.
“It is like comparing apples to oranges.”
I am similarly peeved when I hear such comments. In my case I have studied law in England and in Italy, which have different legal systems from American judge-made or case law. The history and ethos of these societies are different, and they require legal systems that suit their traditions.
“I don’t know how any American lawyer can comfortably make such pronouncements, knowing that American law schools do not adequately emphasize comparative or international law in their curriculum.”
“We’re just always number one!” I try some humor. “It’s an American thing,” I explain to Priscilla.
Making unfounded comparisons.
On October 12, 2020 at the beginning of the Supreme Court confirmation hearings of Judge Amy Coney Barrett, who is in all likelihood going to replace the iconic Justice Ruth Bader Ginsburg, a United States Senator declared the significance of the confirmation hearings noting that the world was watching. The Senator said America had the best jurisprudence in the world and was the envy of all legal systems. He said it in a manner that was certainly American.
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