Elitism is Good for the Supreme Court
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I’ve been annoyed by the opening round of criticism being thrown at Elena Kagan, President Obama’s nominee for the Supreme Court. Apparently, going to an elite high school in New York City (Hunter College), graduating from Princeton, and getting a law degree from Harvard Law School is a problem. If confirmed, the eight of the nine U.S. Supreme Court Justices will have received their legal education at Yale Law School or Harvard Law School (the two best law schools in the country). And the ninth — Ruth Bader Ginsburg — got her J.D. from Columbia.
If I’m understanding the criticism correctly, education of our Supreme Court Justices is a huge problem. God forbid that the branch of government that is granted unelected power for life be filled with intellectual elites!
(Full disclosure: I had Kagan as a professor — while apparently losing touch with the rest of humanity locked inside an ivory tower.)
When we are talking about the Supreme Court, we are talking about a group of people who are in charge of defining our Constitution. That seems pretty important to me. But now we’re going to dog these people for being educated at the best possible legal institutions? Seriously? Isn’t that like bitching that there aren’t enough skinny people in the heavyweight boxing division?
The hypocrisy from the critics of Kagan’s educational background is astounding. But is there any point to it? Let’s clear away the BS and see if there is anything growing underneath…
There are a couple of constituencies that need to sit down and shut up. Yes, I’m looking at people who graduated from other Ivy League law schools or similarly elite institutions like Stanford, Berkeley, the University of Chicago, etc… Just because Yale and Harvard are about to have a stranglehold on the Court, don’t act like throwing in a couple of Duke grads would significantly change the educational make-up of the Court. If you think there is a huge educational difference between Columbia and UVA Law School, you’re forgetting that even Southern casebooks teach you about the 13th Amendment.
I also wish to hear no more complaining about Kagan’s background from Republicans. At least not the Republicans who wet themselves over the sterling pedigrees of Chief Justice John Roberts (Harvard College, Harvard Law School), or Justice Samuel Alito (Princeton, Yale Law School). Liberal elites are to be feared while conservative elites are to be respected? I’m not going to buy an argument so stupid that even the Tea Party people can see through it.
And really, you conservatives had your chance to nominate somebody without an elite background when President George W. Bush (Yale, Harvard Business School) nominated Harriet Miers (Southern Methodist University, SMU Law School). How did that work out for you? Hey, don’t blame liberals, conservatives killed the Miers nomination before the left even had a chance to fully sink their teeth into her.
The question I have yet to hear a satisfactory answer to is: what precisely is the benefit of going to crappier law schools than the ones our current Supreme Court Justices attended? Harvard and Yale don’t have a monopoly on the best legal minds? Well, I totally agree with that.
So does Obama. Two of the people on Obama’s most recent shortlist for the Court had non-Ivy league pedigrees: Judge Sidney Thomas (Montana State, University of Montana Law School) and Judge Diane Wood (University of Texas – Austin, UT Law). Both of those potential nominees are well educated and extremely intelligent. And it’s not like Obama went in another direction because Thomas and Wood lacked a Harvard degree. Thomas was perhaps a little too liberal, while Wood was a little too old.
But either way, we’re talking about some very elite people. People who are extremely well educated. Again, what the hell is the “plus factor” for judges who happened to receive law degrees from a “non-elite” law school? It’s not like they are dumber. Judge Wood, for instance, is widely regarded as one of the most intelligent jurists in America. But somehow she’s more in touch with “regular” Americans because she went to UT? That doesn’t even make any sense. Wood’s been on the Seventh Circuit Court of Appeals for almost 15 years. The last time she shared a legal thought with “regular people” she was probably bitching about the O.J. acquittal.
Legal analysis at its highest levels is downright Byzantine. Supreme Court Justices don’t “go with their gut.” They don’t come up with a brilliant legal idea because a guy at the local 7-11 said something insightful. SCOTUS Justices read briefs, they read cases, and they pick apart statutes. They talk to other judges and hear arguments from other extremely well educated lawyers. They see what their clerks dig up (clerks who, by the way, all come from the same elite law schools or were at the very top of their class at less prestigious institutions). And then they write. All else being equal, at what point in this process are we supposed to value the education at Community College of Law over the best legal institutions we have? What is so laudable about being average when it comes to thinking?
If we really want to shake up the educational background of the Supreme Court, why don’t we put a non-lawyer on the bench? Seriously, there’s no Constitutional requirement stipulating that one has to have gone to law school and received a law degree to sit on the High Court. Put CEO of Google, Eric Schmidt, on the bench. I bet he’d have some fascinating ideas about the importance of net neutrality laws. I think he’d make a great Justice (not that he’d take the pay cut). I’m not being facetious, if we want educational diversity on the Court, let’s go out and elect a President that promises to make it happen.
Of course, Eric Schmidt is a pretty elite guy himself (Princeton, Ph.D from Berkeley). Even the non-lawyers we might want to be on the Supreme Court should probably still be very well educated.
The people currently serving on the Supreme Court did very well in school. What a shock. Why would we possibly accept less from the nine people with inscrutable power to shape our system of justice? Why would we want anything less than a lifetime of achievement from people given a lifetime appointment?
So please, don’t give me this weak song and dance about how choosing elite lawyers from one side of the Mississippi is different than choosing elite lawyers from the other side of the river. The only people that should even be in the discussion for this job are the ones that have consistently risen to the top.
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This editorial was created by 160 Associated Press readers under a Creative Commons Share-Alike Attribution License 3.0 using MixedInk’s collaborative writing tool. For more about how it was created, see here. It can be republished only if accompanied by this note.
Obamas Appointment of Sotomayor Fails to Offer Educational Diversity to Court.
Sotomayor does not offer true diversity to our Supreme Court. The potential power of Sotomayor’s diversity as a Latina Woman, from a disadvantaged background, loses its strength because her Yale Law degree does not offer educational diversity to the current mix of sitting Judges. Once she walked through the Gates of Princeton and then Yale Law School she became educated by the same Professors that have educated the majority of our current Supreme Court Justices, and our Presidents.
Diversity in education is extremely important. We need to look for diversity in our ideas, and if our leaders are from the same educational background, they lose the original power of their ethnic and gender diversity. The ethnic and gender diversity many of our current leaders possess no longer brings a plethora of new ideas, only the same perspective they learned from their common Ivy League education. One example of the common education problem is that Yale has been heavily influenced by a former lecturer at Yale, Judge Frank, who developed the philosophy of Legal Realism. Frank argued that Judges should not only look at the original intent of the Constitution, but they should also bring in outside influences, including their own experiences in order to determine the law. This negative interpretation has influenced both Conservatives and Liberals graduating from Yale. It has been said that Legal Realism has infested Yale Law School and turned lawyers into political activists.
A generation of appointees with either a Harvard or Yale background, has the potential to distort the proper interpretation of our Constitution. America needs to decentralize the power structure away from the Ivy League educated individual and gain from the knowledgeable and diverse perspectives that people from other institutions can provide. We should appoint Supreme Court Justices educated from amongst a wider group of Americas Universities.
Harvard -
Chief Justice John Roberts
Anthony Kennedy
Antonin Scalia
Stephen Breyer
Ruth Bader Ginsburg (Harvard, Columbia)
Yale
Samuel Alito – Yale JD 1975
David Souter
Clarence Thomas – Yale JD 1974
Sonia Sotomayor – Yale JD 1979
Northwestern Law School.
Justice John Paul Stevens
The Presidents we have elected for the last twenty years, have themselves been Harvard or Yale educated. This has the potential to create an even more closed minded interpretation of our laws.
Yale – Bush Sr. – 4 years
Yale Law – Clinton – 8 years
Yale – Bush, Jr. – 8 Years
Harvard Law – Obama – 4 – 8 years
When we consider that our Nation has potentially twenty – eight years of Presidential influece from these two Universities, as Americans, we should look long and hard at the influence Yale and Harvard have exerted on our nation’s policies. Barack Obama promised America Change, but he has continued the same discriminatory policy by appointing a Yale graduate over many qualified candidates that graduated from other top colleges and universities in America.
You’re missing the point. It’s not that we don’t want top-rate lawyers sitting on the Supreme Court: it’s that there are plenty of top-rate lawyers that didn’t attend Yale or Harvard.
Right, and I’m saying that there is no discernible difference between a top rate lawyer that attended Harvard or Yale, and a top rate lawyer that went to Stanford or Berkeley.
So what are we really arguing about here? Because it doesn’t really seem to be about educational diversity.
In response to another comment. See in context »I’m not sure if that’s true. Here’s what I had to say about it:
“The overrepresentation of Ivy League graduates on the Supreme Court (and on appellate courts) has little to do with ability and everything to do with personal and institutional relationships. Great legal minds aren’t exclusive to Harvard and Yale, and I think we’re doing ourselves a real disservice by restricting our “nomination pool” to the usual group of elite East Coast law schools. Even if the Court is otherwise diverse, justices from extremely similar educational backgrounds will carry similar habits of mind and similar ways of seeing the world. A justice from outside the Ivy League might see the legal landscape in ways significantly different from her peers, might find different cases compelling, and might take a different approach to legal reasoning.”
This isn’t about choosing justices from community colleges, it’s about trying to avoid a Court where all of its members are susceptible to the same institutional biases.
In response to another comment. See in context »Well put, Jamelle.
In response to another comment. See in context »Mr. Bouie, I agree, especially as a graduate of a decidedly non-ivy league law school (who, when I went to work on Wall Street, discovered my education was every bit as good as that of my colleagues from Harvard and Yale). I believe in the benefits of diversity of all types. Geographical and scholastic diversity, while perhaps not as critical as gender/race/ethnicity, do matter.
That said, I am not arguing against Kagen’s nomination, but would like to see some appointments by Obama that reflect a much greater regional and scholastic diversity.
In response to another comment. See in context »Jamelle, I agree, but in addition to whatever ideational biases may be cultured within specific institutions, I think there’s at least one other issue. That is that when all SC justices come from Harvard and Yale, an application to Harvard or Yale becomes a necessity for anyone who wants to be a SC justice. That gives those institutions gatekeeper power over the apex of the judicial system. And anyone who doesn’t think those institutions are aiming for exactly such gatekeeper power, or thinks they don’t take advantage of it…needs to take a closer look at how Harvard works.
In response to another comment. See in context »Matt, that’s something I didn’t consider, but you’re absolutely right.
In response to another comment. See in context »Matt, I’m with you on the gatekeeper point. But Obama could pack the Court with Occidental graduates and it wouldn’t make a difference to the power of Harvard and Yale and similar schools.
You can’t break their power unless you fundamentally change the prestige consciousness of the legal profession. Sadly, I don’t see that happening because most lay people don’t even understand the difference between a good lawyer and a crap one.
As I’ve said before in this space: if I give you a Yale lawyer and a UConn lawyer and ask you to choose who will defend your company in a billion dollar lawsuit — absent other information, you’ll choose the Yale lawyer. That’s the Yale power base.
In response to another comment. See in context »Really smart guy, this Jamelle! Excellent perspective!
In response to another comment. See in context »Jamelle:
Where is your evidence for this statement “ustices from extremely similar educational backgrounds will carry similar habits of mind and similar ways of seeing the world.” Am I supposed to believe this because you think it does? I question your assumptions. I have no reason to believe that Justices graduating from the same institution have the same habits of mind. Just because this may sound right does not mean it is. All I’ve seen in my time observing the court is how different Scalia and Breyer are even though they both graduated from Harvard Law. Or how different Sotomayor and Thomas are even though they both graduated from Yale Law. It is not just their ideologies, they actually carry very dissimilar habits of mind and I still have not seen their “similar ways of seeing the world.” Please post some evidence and then maybe your post will carry some weight.
In response to another comment. See in context »See, but the problem is that we are not, in fact “restricting our nomination pool.” As I pointed out, half of Obama’s shortlist contained people who weren’t from Harvard or Yale. So I don’t see how that’s restrictive.
And Wood would have gotten the nomination had she been ten years younger. And Sid Thomas might still get one (not that I’m wishing anything bad to happen to any of the eight current justices).
So, again, are you really saying that Obama should have chosen a Thomas over Kagan *because* Kagan went to HLS and Thomas didn’t? I mean, I get that all else being equal, you’d want gender diversity and racial diversity and religious diversity on the Court. And I think modern presidents have taken that into account. I’m glad they do. But now you’re arguing that Presidents should also take “educational diversity” into account? And the compelling reason for that is an institutional bias against or for … well see, I don’t even know what people think Harvard and Yale represent that the University of Montana is supposed to counteract.
In response to another comment. See in context »Exactly. This article rings as hollow as other attempts to discredit the value of racial, gender, socio-economic, and other forms of diversity. Imagine someone trying to argue: “So what if most of the judges are white?” “Are you saying wealthy people have a monopoly on the best legal minds?” “Just because men are about to have a stranglehold on the Court, don’t act like throwing in a couple of women would significantly change the educational make-up of the Court.” Ridiculous.
In response to another comment. See in context »Elie,
No real issue with your piece. And I know I’m restating other comments. I agree that SCOTUS Justices should be the best of the best. And clearly, it seems, the best academic legal minds come from the Ivy League law schools. No argument there. However, what I wish you had addressed was the potential for a narrow frame of reference.
Breyer, Scalia, and Kennedy all graduated from Harvard within four years of each other (’64, ’60, and ’61 respectively). Thomas (’74), Alito (’75), and Sotomayor (’79), all from Yale, are within five years of each other. The outliers are Roberts (Harvard, ’79) and Kagan (Harvard, ’86). Ginsburg (’59), of course graduated from Columbia (but she started at Harvard).
My point being (And, full disclosure, I’m a social scientist, not a lawyer so I only have a little better than average knowledge of law school.): How much do lawyers get from their professors? Obviously the same brilliant law professors taught many of these brilliant people. Does that in any way limit their viewpoints in a certain way? If the teaching at the top 14 schools is largely identical then fine, we’re being intellectually dishonest when we rate Harvard above Duke, UVA, or Georgetown. But if there are some differences in the education, then what are we missing by not looking graduates from the other top universities?
Thanks for writing the piece.
Your kind of asking the wrong guy. You know how they say law school “teaches you to think like a lawyer”? Well, if you think about it, that’s a violent and intrusive process. I liked how I thought *before* I got to law school just fine, and I didn’t appreciate professors trying to get in my head and f*** with how my brain worked.
So I resisted. But this isn’t a fairy tale. The sisters got to me (try watching commercials with me sometime … I can’t make it through a 30 minute show without “false advertising” claims running through my head).
But since I fought so hard to avoid it — and still fight — I’m not the best person to answer “how much do lawyers get from professors.” If you ask me, as little as possible. If you ask other people, they’ll probably say more.
My point in the article is that having met lawyers from all manner of law schools that, violative, process is pretty much the same all over. Educational diversity isn’t about who damaged your brain, it’s about how much they changed it.
Put it this way: I’m sure the American military and the North Korean military employ different training tactics. And maybe (maybe) you could call one group of soldiers “better” than another. But at the end of the day, both soldiers could kill me with their bare hands, and quickly. If I want diversity in terms of who is going to destroy me, I’m not looking at different soldiers, I’m looking at the difference between a soldier, a politician, a criminal, and so on. And of course, those categories aren’t mutually exclusive, I’m just saying I’d look at different kinds of training instead of different versions of the same training.
In response to another comment. See in context »No disagreement that there’s some benefit to having educated Justices. No disagreement that all else being equal, I’d rather have educated Justices with exposure to superior training.
I think the problem is the potential for homogenization. Harvard and Yale are reputable and have obvious pull on the public. Educational branding means a lot, and the argument that because you went to the right school you have the potential to do great things is bandied about a lot and frequently treated as true. It leads to the possibility that people in the future, when considering Supreme Court nominees (or other court nominees) will expect/demand identical pedigrees. This is good for consistency, but may [emphasis on may] be a bad thing in practice.
Harvard and Yale (and many of the other top 14 schools) are frequently called theoretical, in part because the graduates don’t have a need to stay in state (where a school’s name is known). This isn’t a bad thing, but it is possible to be dissociated from practical considerations while providing what must be practical solutions. Identical training tends to produce identical analysis and solutions, but there are times (I’m thinking outside of law, specifically) where a different approach might lead to a better solution. Without diversity of thought, we’ll never be exposed to that alternative solution. A homogeneous set of Supremes raises the potential for stagnation, which may be desirable or terrible depending on your legal philosophy.
I am of the opinion that the Supreme Court is setting itself up for a legal challenge, as to whether or not 1) their opinions are in fact biased due to their common Ivy League education, and 2) they are engaging in discrimination, by limiting the Court to Ivy League Graduates.
Elie.. I love to read your stuff. But you are too occupied with Harvard and Law School. The next Supreme Court jurist should come from WVU (one of my alma maters) to assure the decriminalization of marijuana and moonshine. Go ‘eers!
Elie,
I agree and disagree with you. Agree with your point about the stanford, columbia, NYU, uchicago folks who are complaining, because their complaints are hollow. I’m not sure what others argue, but my general problem with the Harvard/Yale dynamic on the Court is that it’s reinforcing the idea that just because you went to Harvard/Yale makes you qualified to serve on the Court or in other positions — I didn’t think Kagan was qualified to serve as Sol Gen b/c I felt court experience was necessary for the job. I think Kagan is probably qualified, but I guarantee you that if the exact same person from Howard Law (my alma mater) had her same resume, they wouldn’t get a sniff from the Court. At no time has she ever distinguished herself from what I can tell in her career. She wasn’t a superior associate at her law firm, wasn’t a well-published professor at Chicago or Harvard, and didn’t get her major FDA bill passed while she was at the WH. But she always had the resume and connections to keep progressing up the ladder. I’m not knocking her for that, but I do knock our society, which allows progress without excellence for a select few from a select number of schools. It creates a system where one’s legal career can come down to how you do on the LSAT b/c that’s still the largest predictor of what law school you attend (particularly for minorities). And what law school you attend is the greatest predictor of whether you will receive a prestigious clerkship (the reality is that there’s not many non-Ivy clerks on the Circuit or Supreme level). And whether you have a Supreme Court clerkship determines whether you can receive a tenure-track position at a great law school only 3-4 years removed from graduating. Kagan’s entire career can be traced back to the fact that she attended Harvard and was relatively successful there. Nothing else in her portfolio suggests she was nearly as distinguished as she was when she was an HLS student. Only a select few schools in this country are kingmakers (or queenmakers) and Harvard is one of them, and there’s something a little squirrely about that, which doesn’t sit right with me and a lot of other people. But I’m also not surprised that someone from Harvard like yourself doesn’t understand that…
I couldn’t care less where they went to school (and I went to a mediocre public law school) — that’s like arguing about what kind of car they drive. I just want Obama to stop appointing moderates!
We could be looking at TWENTY to THIRTY years of the most conservative court in history, with 2/9th of it owing to Obama’s centrist justice. How can an appointee be “too liberal” with a GOP minority in the senate? The stars were aligned for us not just once, but twice…and these two chances have been completely wasted.
Stop worrying about the trees, and take a look at the forest.
Okay, a few points here (on this thread that has been so much more pleasant than my last one: thanks!):
1) If Obama nominates Wood (UT) instead of Kagan (HLS) we aren’t even having this discussion. That’s ridiculous because there’s nothing about Wood’s education and experience that make her any different than Kagan. We’re not talking about diversity of education, we’re talking about diversity of name recognition.
2) Can somebody tell me what the institutional bias is at Harvard and Yale? Maybe I’m biased because I’ve been institutionalized, but for the life of me I can’t think of how Harvard might have brainwashed me in a way that is fundamentally different than how Miami would have brainwashed me. Sure, I might have had more sex in law school somewhere else, but I’m not sure that is judicially relevant.
3) If anything, there is a self-selection issue here. The law schools we’re talking about tend to accept people who did really well in college and who did really well on a standardized test. The people who apply to these law schools tend to think it was important to do well in college and important to do well on tests. Is it possible that we want someone on the Court that doesn’t place a high value in those things? Absolutely, I think. But I don’t think we get there by selecting people who did slightly less well in college or slightly less well on a stupid test. I think we need to look for people who never bought into that system in the first place. I’m not sure we’re getting that with a Stanford grad.
4) Whatever ideological branding happened to these potential and current Justices, it happened a generation ago. I just don’t think that something that where Kagan was taught 25 years ago (for only three years) has as much an effect on her judicial philosophy as the other 47 years of her life. It’s a school, not a brain programming device.
5) If we’re going to focus on theoretical diversity, the law school is the wrong focus. There are plenty of people that went to “elite” law schools and then did some very off-the-beaten track things. Some became local prosecutors, others went into business or another field entirely. If we want true diversity, why not go get these people?
6) I said the “Community College of Law” line rather derisively, but let me be clear: Somewhere there is a lawyer who went to some law school I’ve never heard of, at night, worked his way up, and is right now a sitting state court judge doing *brilliant* things. Justice Mendoza on the West Wing level of brilliant. Let’s go find that guy/woman.
7) The problem — if there is one — isn’t Harvard/Yale, the problem is that we’ve become very stale in our thinking about what makes a “good jurist” and what makes a great one. We’ve gotten stale in our thinking about what qualities a justice should have (for instance, they should be apolitical. Why? That’s not written down anywhere and *newsflash* our justices are not apolitical at all.)
It just so happens that the qualities we currently value are *exactly* the kinds of things Harvard/Yale pumps out. If we want to break their stranglehold we need to value different things.
8 (and final): The bitch of it is, the minute we start valuing different things in our jurists will be the minute Harvard and Yale start pumping out those kinds of people. Or is it that the minute Harvard and Yale start pumping out different kinds of judges will be the minute we start to value different things?
These places have been where they are for a couple of centuries for a reason. Never underestimate the power of the dark side.
3) It helps to be established, or seen as established. We expect to look at rankings, and as I think you pointed out either here or at ATL, people who don’t have knowledge of doctors, lawyers, engineers, plumbers, restaurants, etc., will look to rankings and recommendations in hopes of making an informed decision. Without changing the culture of law in general, we’re not likely to find a lot of lawyers from outside the t14 who are able to break through the glass ceiling, regardless of their personal ambitions.
4) It’s possible that you don’t see it, but I approach the problems the way I was trained by engineering school, even though it wasn’t the entirety of my life. Most of the long term practitioners I’ve met in both engineering and law are consistent, decades later, in their problem solving approach. Law for Supremes was only a three year education, but the training from law school was probably reemphasized by other Harvard and Yale lawyers they met in government, clerkships, and at firms. Law school doesn’t stop having an influence just because you graduate.
7/8) Harvard and Yale (and the Socratic method) drive what other law schools accept. More importantly, they tell the lay public and impressionable politicians what to expect of lawyers.
In response to another comment. See in context »I think that the diversity in education that people are seeking is prima facie. What I mean by that is people want someone who wasn’t poured into a mold consisting of elite schools and culminating in being appointed to the SCOTUS. While I’m sure having the pedigree that the current SCOTUS Justices have makes for very smart jurists. I think advocating for people who are less than qualified is silly and not what people are driving at when they say ‘diversity of education’. I would say that what people are looking for, and what Obama was/is looking for, is a diversity of experiences and that can manifest itself in crying for people from non-elite institutions. People like Sid Thomas who take a difference path to becoming successful attorneys/judges/professors than is typical. I personally would have relished the opportunity to watch Sidney Thomas work on the SCOTUS precisely because he wasn’t groomed for greatness like Kagan was by being sent to the best schools her whole life. While the reasons for Kagan’s pick may be for practical reasons (ease of confirmation, palatability with R’s, age) I think Thomas would make the better Justice because of his ‘non-traditional’ pedigree and obvious qualifications. What Obama has called empathy doesn’t come from sitting in a class taught by a Kingsfield, a la “Paper Chase”, but from experiencing life from outside the ivory tower and not thinking about issues in abstract terms but living them.
A caveat with my response is that I don’t know the details of either Sid Thomas’ life or Kagan’s (other than their education), but when we are talking about diversity of education I think it is really double-speak.
“what precisely is the benefit of going to crappier law schools than the ones our current Supreme Court Justices attended?”
Crappier? Are you sure you meant to say that law schools other than the ones in question are… “crappier?”
Hmm…..