With news of Justice Souter's departure at the end of the term, a plethora of diaries have been written about what traits the next Supreme Court Justice should possess. One such trait that has not received much attention is the education of the prospective nominee -- or more specifically the where they have been educated.
The Court is currently made of six Harvard Law School and two Yale Law School graduates. With the death and retirement of Chief Justice Rehnquist and Justice O'Connor, Justice Stevens is the sole Member of the Court who did not attend an Ivy League law school.
Meteor Blades pictorial summary of potential nominees is a fairly exhaustive list of likely nominees -- assuming that the nominee will have a law degree (sorry fans of Vice President Gore) and will be under 60 (likewise sorry fans of Secretary Clinton, President Clinton, and Professor Tribe). However, that list demonstrates that the Ivy League trend will likely continue as ten of those fifteen candidates attended either Harvard or Yale Law School. Is this a problem?
I believe this is a significant problem as it provides a small number of professors with an unprecedented level of control over shaping a third of the government. It further discriminates against students who have traditionally been unable to gain admission to Harvard or Yale or were unable to attend for want of resources.
Five of the current Justices were at Harvard Law School between 1958 and 1963 (J. Ginsberg 56-58, J. Scalia 57-60, J. Kennedy 58-61, J. Breyer 61-64, and J. Souter 58-61). Yale similarly educated it's two alumni at the same time (J. Thomas 71-74 and J. Alito 72-75). This means that it is entirely likely that only two contracts, torts, civil procedure, and criminal law professors educated seven of the nine justices. These few men (as law professors at that time were almost entirely WASP men) had unprecedented control over shaping the core philosophies for a third of our government.
By only considering Harvard and Yale Law School graduates well qualified to serve on the Court we are creating an ivy ceiling to any one who makes a potentially fiscally sound decision to attend a state school (compare Yale at $138,000 to Indiana University at $59,964). Do we want a representative democracy where one's right to aspire to the highest offices is impaired by their means to pay for an Ivy League education? For over fifty years, our Presidents have opted to only promote those who could.
Historically, the Court has represented a greater diversity of education. Fifty-four Justices have been named to the Court since 1900 and forty-nine had some post-graduate legal education. Twenty of those forty-nine (41%) attended either Harvard or Yale, and twelve (24%) attended public schools. If we exclude the current members of the Court, then there is an even split (30% each) between Justices who attended Harvard or Yale and those who attended a public school. Unfortunately, for both diversity and the country, the last Justice educated at a public school (University of Missouri) was Justice Charles Whittaker who was nominated by President Eisenhower in 1957.
It is my sincere hope that President Obama takes this opportunity to bring greater diversity to the Court by nominating someone who attended neither Harvard nor Yale Law School. Using Meteor Blades list, I would recommend Ms. Teresa Roseborough (UNC), Judge Kim Wardlaw (UCLA), or Ms. Diane Wood (University of Texas). Of those three, I would most like to see Judge Wardlaw nominated to the Supreme Court. Not only is she a solid liberal justice who wrote the lower level opinion ruling a strip search of a 13-year old girl to be unconstitutional that the Supreme Court is ready to overrule, but she would also be the first Hispanic American Supreme Court Justice.* * *
In full disclosure the author attended a private law school