Pollak: Kamala Harris Could Become First Supreme Court Justice to Have Failed Bar Exam

 Vice President Kamala Harris could be the first Supreme Court Justice to have failed the Bar exam — that is, if rumors that President Joe Biden may nominate her to the nation’s highest court are true.

For the past several days, speculation has been building that Biden might dispense with the unpopular Harris by “promoting” her to the Supreme Court, to which he has promised to nominate black female justices. He would then replace her with another vice president, possibly Secretary of Transportation Pete Buttigieg, assuming that he could pass a majority vote of both houses of Congress, as required.

If she is, in fact, nominated and confirmed, Harris would likely be the first Justice to have failed the Bar exam, the entrance exam to the practice of law.

California’s exam is notoriously difficult, and Harris would not be the first prominent person to fail the Bar, but it would be unusual for someone nominated to the Supreme Court to have stumbled at the first legal hurdle. (In contrast, Justice Amy Coney Barrett, the newest on the Court, graduated first in her law school class at Notre Dame.)

The issue of Harris’s Bar exam failure has come up before, and has been confirmed by fact-checkers, such as USA Today. The New York Times noted, parenthetically, in an otherwise upbeat 2016 profile: “She failed the bar exam the first time she took it. Harris says she recently consoled a young law graduate who also didn’t pass; ‘I told her, it’s not a measure of your capacity.'”

Supreme Court legend Benjamin Cardozo was said to have failed the Bar exam, but that turned out to be an urban legend.

There in no requirement that a Supreme Court Justice have passed the Bar exam, a qualification that did not exist in the early days of the Republic. Nor must a Supreme Court Justice have any prior judicial experience, or even any legal experience, though it would be extremely unlikely for the Senate today to confirm someone without legal credentials and a strong record.

Harris would not be the first Justice not to have passed the Bar exam; she would simply likely be the first to have failed on the first try. Harris previously served as District Attorney of San Francisco and Attorney General of the State of California.

Current liberal Justices Stephen Breyer or Sonia Sotomayor could control Harris’s fate — if indeed an executive reshuffle is in the works — since one of them would have to retire soon to open a place for her while Democrats still had 50 Senate seats.

In addition, Harris might find herself in the awkward position of casting a tie-breaking vote in favor of her own confirmation, since there may be no Republicans who believe that someone who has failed the Bar exam could be on the Supreme Court.