Alina, Would You Rather Be Smart Or Pretty?

Six of the current justices on the Supreme Court had, themselves, served as Supreme Court clerks — perhaps the highest academic distinction in law — when they graduated from law school. In addition to most of the justices, the lawyers representing Trump and those lawyers seeking to disqualify Trump had also served as Supreme Court clerks. Only Justices Alito (a mere Third Circuit clerk), Sotomayor, and Thomas had not clerked for the Supreme Court in their youths, as well as Shannon Stevenson (a mere Tenth Circuit clerk), who argued for the Colorado secretary of state.

It’s an impressive group, and it showed.

Here’s a tangent: I agree with the pundits who are saying that Trump will win this appeal and remain on the ballot. The six conservatives will probably vote for Trump; Kagan seemed to be leaning that way; and I wouldn’t be surprised if the court chooses to rule on some narrow ground to pick up the remaining two votes and make the decision unanimous. The interesting thing is whether there will be another round of litigation after this one: The Supreme Court could rule on an issue that finally decides the dispute (such as the president not being an officer of the United States) or the court could rule on an issue that kicks the can down the road (such as Colorado not having the capacity to remove Trump from the ballot, but perhaps some other entity could). I sure hope the Supreme Court rules in a way that puts this mess behind us once and for all.

But here’s my real point. (You knew I’d get there eventually.) (Well, maybe didn’t “know,” but hoped.)

In a recent interview, Alina Habba, who represented Trump in the E. Jean Carroll defamation case, was asked whether she would rather be pretty or smart.  She said, “Oh easy, pretty … I can fake being smart.”

I have a (very smart) buddy (a law professor) who said folks had once administered a survey to people of all levels of intelligence, asking the respondents whether they’d rather be rich or smart. The stupid people who answered the survey said that they’d rather be rich; the smart people said that they’d rather be smart.

Perhaps stupid people don’t know any better.

Years ago, when I clerked in the Ninth Circuit, we often received subliterate briefs from lawyers who later stood up and humiliated themselves at oral argument, unable to comprehend, let alone answer, the questions posed to them. Out in the hallway after argument, you’d hear some of those lawyers tell their clients, “I couldn’t have done any better! I guarantee that you’ll win this appeal!”

Perhaps stupid people don’t realize that they’re stupid.

I’ve spent hours of my life in rooms with exceptionally smart people, and I’ve spent hours in rooms with stupid people. I’m here to tell you this, Alina: It is easy to fake being smart — in a room filled with stupid people. But it extraordinarily difficult, and perhaps impossible, to fake being smart in a room filled with smart people. Smart people know a fool when they hear one.

Anyone who says otherwise has probably never been in a room filled with smart people. Or perhaps they’ve been in a room filled with smart people and, like my Ninth Circuit advocates, not realized that they had embarrassed themself by flaunting their stupidity.

In the words of Mark Twain (or perhaps Abraham Lincoln, or perhaps neither, but it’s a great quote): “Better to remain silent and be thought a fool than to open one’s mouth and remove all doubt.”

You should have heeded that advice, Alina. Ignoring that advice is …  well …  stupid.

Mark Herrmann spent 17 years as a partner at a leading international law firm and later oversaw litigation, compliance and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.