Supreme Monopoly: Kagan’s Nomination Confirms The Lack of Educational Diversity on The Court

Below is today’s column (one of two columns today on the Supreme Court) addressing the troubling exclusion of schools other than Harvard and Yale on the Supreme Court — a type of academic cartel that is damaging to both that institution and our educational and legal systems generally. Click here for the other column in USA Today. Time Magazine also ran a long story on the reliance on graduates from Harvard and Yale, here.

If confirmed as a Supreme Court justice, Elena Kagan will bring greater diversity to the court by adding a third woman. What she will not bring is educational diversity. Her confirmation will leave the court entirely composed of former law students at either Harvard or Yale.

The decision of President Obama to select a nominee from one of these two schools is particularly disappointing as a replacement for Justice John Paul Stevens — an iconic figure on the court who was also its only graduate from an alternative institution (Northwestern). Kagan will join fellow Harvard graduates Chief Justice John G. Roberts Jr. and Associate Justices Antonin Scalia, Stephen G. Breyer and Anthony M. Kennedy. This leaves three justices from Yale (Clarence Thomas, Samuel A. Alito Jr. and Sonia Sotomayor). Associate Justice Ruth Bader Ginsburg also attended Harvard but graduated from Columbia.

» Don’t miss a thing. Get breaking news alerts delivered to your inbox.

Why should we care? When you virtually exclude all but two of the nation’s 160 law schools as sources for justices, it not only reduces the number of outstanding candidates but guarantees a certain insularity in training and influences on the court. This bias is not only elitist but decidedly anti-intellectual. Moreover, there is no objective basis for favoring these two schools. Annual rankings from law schools on publication or reputation or student scores show relatively small differences in the top law schools. The actual scores of the small pool of students in the top tier vary by only a few points. While Harvard and Yale are routinely ranked in the top spots, the faculties and student bodies are not viewed as manifestly superior to such competitors as Stanford, Chicago, Michigan or other top schools.

If Obama had looked more broadly at outstanding graduates from other schools, he might have found someone with more professional experience, a more extensive writing record or some actual experience in the judiciary. What Kagan had was a Harvard connection and one of the most powerful legal cartels behind her. When challenged on this obvious bias in favor of two schools, leaders usually insist that it is just coincidence. Ironically, the federal government has long rejected the claims of businesses that insist their failure to hire from certain groups, such as women or minorities, is unintentional.

The United States leads the world in legal education, but you would not know that from the roster of justices. Obama preferred Kagan, for example, over such potential choices as U.S. 7th Circuit Judge Diane Wood, who is generally viewed as one of the most brilliant minds on the federal bench and who has a lengthy record of both opinions and legal writing. She also graduated from the University of Texas. There are dozens of such jurists and lawyers who are leaders in their fields from different geographic and educational backgrounds.

Elitism on the court is open and raw. For those not familiar with it, consider Scalia’s recent remarks to a student at American University’s Law School. He said that she should not expect to be considered for a Supreme Court clerkship given the school she attended. Scalia explained: “By and large, I’m going to be picking from the law schools that basically are the hardest to get into. They admit the best and the brightest … and if they come in the best and the brightest, they’re probably going to leave the best and the brightest, OK?” Many in the audience were not happy, but at least Scalia was being honest about the raging elitism at the Supreme Court. It is, of course, ridiculous to suggest that the top student at American is not competitive with the top students from Harvard. However, this prejudice against non-elite schools is perpetuated by justices like Scalia who rarely look beyond the top five schools for clerks.

Nominations like Kagan’s are the result of a network of graduates who work consciously or unconsciously to see that their own are nominated. Notably, after Kagan’s nomination, powerful figures from her Harvard years came forward to vouch for her abilities. Their message was the same: Despite her lack of a record, she is known in our circle as a real winner. She is, in a phrase, one of us. Indeed, reporters breathlessly reported how Kagan and Scalia are good friends and how she knows many of the main players from Harvard, as if it is the judicial equivalent to having graduated from the Hogwarts School of Witchcraft and Wizardry.

The favoritism shown Harvard and Yale should be viewed not just as incestuous but as scandalous. It undermines educational institutions across the country by maintaining a clearly arbitrary and capricious basis for selection. It also runs against the grain of a nation based on meritocracy and opportunity.

If there is one place in the world that should be free of such baseless bias, it is the Supreme Court of the United States. But that would require looking a bit west and south from the banks of the Charles River.

Jonathan Turley is a professor of law at George Washington University, where he teaches a course on the Supreme Court.

31 thoughts on “Supreme Monopoly: Kagan’s Nomination Confirms The Lack of Educational Diversity on The Court

  1. The president should avoid putting any more Catholic Harvard or Yale grads on the court. If he wants an atheist from Duke and Michigan State without a law degree, I’m available…

    Truthfully, I’m not sure what to think about this – is it a result of the flaws in the confirmation process or a bias in the nomination process? Since a long paper trail is a disadvantage in a confirmation hearing, that reduces the criteria by which to judge* competence, artificially inflating the importance of standing entering law school as shown by admission to a top school.

    *pun intended

  2. Alan

    Hello Bloise, sometimes I make a ridiculous statement simply to let the reader use their brain. I’m glad you recognized that last sentence as preposterous, but I was hoping you might take it a step further. For example, that sentence might lead you to realize that nominating a Supreme Court Justice is but one of the many duties performed by the President, and the laser-like focus by a law school professor on that singular issue is fairly absurd. It might also lead you to realize that the Supreme Court justices are nominated by a single person, not by committee, and maybe that is the fundamental problem. Finally, it might also lead you to realize that no matter who is President, or who makes the nomination, not everyone is going to be happy with the choice.

    ===============================================================

    Thanks darlin’ … I learned all that in high school civics waaay back in the day. Which is why I don’t get too excited about Presidential picks … I think it is far more interesting to contemplate how a particular pick will change his or her philosophy over the years and/or to discuss how said pick will relate to presently sitting members. Towards that end I am still studying Kagan’s career and, as yet, have no opinion to offer.

    Thankfully, there are enough learned opinions out there to help my educational process nicely. Thus far I have learned enough to comfortably disagree with some of those on the right who claim Kagan is Obama’s Harriet Ellan Miers. Such silly claims are a waste of reading time.

    I do not find, as do you, Prof Turley’s opinion absurd. It is well stated with numerous examples to back up each declarative. However, there are many, equally as learned, opinions that run counter to his and are also well supported by fact and reasoning.

    So I am going to pretend I am a Senator and determine, after careful study, whether or not to confirm Obama’s choice.

  3. Tribalism is as rampant in the halls of power as without. Scalia is perhaps the only honest justice, though honesty won’t excuse the elitism and irrational denial of opportunity.

    The “best and brightest” is rarely a static inquiry with the answer always demanding to know under what circumstances the question is being asked.

    David Halberstam explored the irony of the notion in his book bearing the same name and cataloging the incredible lapses of judgment by those Ivy League elites in the Kennedy and Johnson Administration as they prosecuted the Vietnam War. The origin of the term is dripping is sardonicism as Junius, the first person to record the term “best and brightest” in print, clearly was using it derisively in reference to King George III minisiters in 1769:

    To have supported your assertion, you should have proved that the present ministry are unquestionably the best and brightest characters of the kingdom; and that, if the affections of the colonies have been alienated, if Corsica has been shamefully abandoned, if commerce languishes, if public credit is threatened with a new debt, and your own Manilla ransom most dishonourably given up, it has all been owing to the malice of political writers, who will not suffer the best and brightest characters (meaning still the present ministry) to take a single right step, for the honour or interest of the nation.

    Halberstam, himself, characterized the work of the “best and brightest” in Vietnam thusly: “brilliant policies that defied common sense … often against the advice of career US Department of State employees.”

    The simplistic reasoning applied by Scalia on the issue of clerkships is telling of his thinking process. I call it the fallacy of decomposition (that is, what is true of the whole must be true of each of its parts). But who needs logic while sitting on the SCOTUS? That Scalia is tone deaf on the true historical meaning of the phrase should surprise no one, but the irony of that faux pas is sweet music indeed — even to these non-ivy ears.

  4. Another excellent, learned and wise trip down memory lane with Mespo. Thank you. We all lived through the Age of Irony back then.

    The Quiet American was the villain of the novel, the Ugly American was the hero of his novel, and Halberstam taught us that the best and the brightest could be the worst and the darkest of all.

    And then there was the remark Senator Roman Hruska that echoes so significantly in the present discussion:

    “In defense against charges that Carswell was “mediocre”, U.S. Senator Roman Hruska (Republican, Nebraska) stated:

    “‘Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises, Frankfurters and Cardozos.’

    “The remark was criticised by many and is believed to have backfired and damaged Carswell’s cause.”

    http://en.wikipedia.org/wiki/G._Harrold_Carswell

    So my question to all: did Hruska do irony?

  5. Vince Treachy:

    “Another excellent, learned and wise trip down memory lane with Mespo. Thank you. …”

    ***********************

    De nada. I am in debt to you for the same about a thousand times over.

  6. 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.

    The following applies to Kagan, just as it did to Sotomajor.

    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.

  7. One additional note. The last President to not attend an Ivy School was Ronald Reagan. He attended Eureka College.

  8. I really like the above, collaborative statement.
    I really really do like it.
    Rings of truth…

  9. Josh Gerstein
    1100 Wilson Blvd
    Arlington, VA 22209 Suite 601
    Question to Elana Kagan on Don’t Ask/Tell Recruitment: US Recruits are not informed of Bush-created $25 Death Sentence Rewards for Captured US POW, which caused death of my nephew, PFC Kristian Menchaca, who was captured with PFC Thomas Tucker in Yosifiya, Iraq, 16 June 2006, both barbarically tortured to death as a consequence of Blood Money deficient Life Rewards which are not explained to recruits.
    SEE: christianmenchaca.com/publisher.php
    Terrorists continue video recordings of the tortures on the Web.
    U.S. Reward fund wrongfully applied by the Bush administration clearly contributed to the torture deaths of captured U.S. soldier Prisoners of War denied Fourteenth Amendment equal protection of higher US offered $5 million each (average Reward life values for Terrorists) to $25 million (bin Ladin & Zawahiri) Bush assigned to captured Terrorist POW, but denied & diverted away from U.S. soldier Prisoners of War.
    PFC Kristian Menchaca & PFC Thomas Tucker were tortured to death as the consequence of insufficient 14th Reward life values (obviously insufficient Blood Money as viewed by Muslim culture) manipulated by Bush Administration; &, these insufficient Reward life values did contribute to the War Crimes applied by Muslim Terrorists against all 100% of captured U.S. soldier Prisoners of War in violations of the Third Geneva Convention of 1949.
    U.S. soldier POW would have survived if accorded their 14th Amendment equality of same Reward life values as captured terrorist Prisoners of War.
    Survival statistics clearly show 100% of U.S. soldier Prisoners of War denied equal protection of Reward life values were tortured to death & murdered (except Bowe Bergdahl) while virtually 100% of captured Terrorists with higher Reward life values survived capture.
    Of question: US diversion of U.S. Corporation donated Reward money that saved the lives of Terrorists while that same money was manipulated away from higher Reward life values for U.S. soldiers tortured to death.

  10. This was front-paged in the Boston Globe, but relegated to a blog in the Wash Post:

    “Civil rights scholar Frederick M. Lawrence was named the eighth president of Brandeis University yesterday, inheriting a school at a crossroads as it tries to raise its profile as a world-class institution amid financial turmoil.

    “Lawrence, the dean of George Washington University Law School who once headed the national legal affairs committee of the Anti-Defamation League, will succeed longtime president Jehuda Reinharz in January when he steps down after 16 years to lead a Jewish foundation focused on leadership education.”

    So another law dean leaves to become a university president. Didn’t the last one leave for a presidency in Utah? GW Law, birthplace of [university]presidents!

    Keep us informed on the progress of the search committee.

    The next Dean of GW Law should be Professor Turley.

Comments are closed.