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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

Originally posted to DCJackass on Fri May 01, 2009 at 12:31 PM PDT.

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Comment Preferences

  •  I agree. (3+ / 0-)
    Recommended by:
    blindcynic, JesseCW, Sark Svemes

    So support my nominee in the bottom of this diary.

    Seriously, though, you raise a good point about the predominance of Ivy-League thought of a certain era prevailing in the court. Whoever it is, I pity them the scrutiny that going to come down on them.

  •  I'm not... (2+ / 0-)
    Recommended by:
    remingtonsteele, DCJackass
    concerned with a cabal of professors programming a generation of powerful people. This it seems to me is less about ideology and more about political/social/economic/intellectual class.

    It seems to me what you're looking at in the numbers above is a couple of nodes in the power elite grid. This is the realm our betters occupy. In the end left or right matter less than in or out. C. Wright Mills wrote about these interconnections in the fifties, and they've only grown stronger.

    Is that a real poncho, or is that a Sears' poncho? - Frank Zappa

    by JoesGarage on Fri May 01, 2009 at 12:45:31 PM PDT

  •  Why a lawyer....... (1+ / 0-)
    Recommended by:

    A case only gets to the Supreme Court when the precedents are not dispositive.  The decision becomes one of values, how much weight to place on conflicting opinions, change in society, or the political effects.

    There are many disciplines that can inform such decisions....history, science, philosophy....or better yet, a broad synthesis of them all.

    Legal principles should be deeply understood as well, but not to the exclusion of these other fields.  And there is an inherent bias in having a group with this power who all share a common experience, a dedication to a profession that because they are part of, will be blinded to its defects.

    If this were a position where the actual legal jurisprudence of the issue determined outcome, a 5 to 4 decision would be a rarity, a divided decision would also....which, of course, is not the case.  

    •  I've never understood this... (5+ / 0-)

      I've never understood why Americans feel that they are able to practice the law without attending law school.  It's akin to feeling a pain in your side and deciding you have an appendicitis, then grabbing a bottle of whiskey and a butter knife before heading to the bathroom to operate.  Is it because mass media make lawyering look so easy?  My apologies but I just don't get it.

      The average case before the Supreme Court has nothing to do with values, and weighing conflicting opinions is left to the trial courts.  No, most cases before the Court deal with legal minutia and teasing out contradictory precedent (or not following precedent at all if you're Chief Justice Roberts).  This is why there have only been five Justices without a legal education named to the Court in the past 109 years.

      For those that think a legal education is not necessary to serve on the Court, please explain Pennoyer v. Neff.

      •  Legal knowledge, Yes..... (1+ / 0-)
        Recommended by:

        And naturally those of the profession believe it is essential.  

        We have Secretaries of Defense who do not go to military academy because it's acknowledged that a civilian has a different mindset.

        And those who make the laws, members of legislatures; and those who enforce the laws, Governors and Presidents, are often not lawyers.  

        Only lawyers think that they have a lock on understanding principles of law.  

        They don't.


        •  I tend to agree with you. (1+ / 0-)
          Recommended by:

          Where the layman might lack is knowledge of procedure - civil and criminal.  I mean, most people can figure out that a crime requires both an act and intent, but when you're talking criminal or civil procedures that vary, that's where it gets dicey, I think.  Then again, IANAL, as they say.

          I don't drink, fornicate, smoke, or cuss. "Dammit, I left my cigarettes at the gay bar!"

          by Texas Blue Dot on Fri May 01, 2009 at 01:56:20 PM PDT

          [ Parent ]

        •  And we have had presidents who were more (0+ / 0-)

          ordinary, who did not believe needed to know much about anything, even ones with a Yale degree of some sort ... people who beyond loyalty to a particular political persuasion and the reasonable use of buzz words, poses and scripts did not have to have any substance. We do not need more people like that in any branch of government.

          That said, I do believe that novices and people who do not have a specific professional background CAN do very well in some high profile roles, appointed or elective.... BUT they are exceptions... And it is a roll of the dice with very long odds.....more often poorly grounded yet well intentioned people spend too much time trying to get up to speed and as seems to be the case most of the time falling short in obvious ways that they and/or their supporters are in denial about regardless of whether they aren't being used as a puppet by others...And all too often just end up being defensive of their own shallow record with not much to show for in their new role and just dismissive or even jealous of those who just have more depth and credentials... .

          But having justices ONLY from Harvard or Yale does seem elitist (both in the good sense and the more recent not so good senses) and exclusionary to some degree... And it may seem like an quicker and easier, lazy option for the appointment process. When in doubt go for the Brand name approach.... that sure narrows the list of possibilities too..... But as we have seen all too often, that is no guarantee of brilliance either though it is a safer bet than trending to the polar opposite where being a "man/woman of the the people" with the right agenda and political notions becomes what the party in power of the moment looks for without any attempt at subtlety. We should avoid any precedents that could eventually lead all too easily to a much more politicized court (and make what we have had seem even handed) with much less basis to trust it's gravitas and authority. It's reputation has been eroded, we must avoid eroding it further and as it is it will take a long time to build it back up.

          Casting a wider net is more democratic... but should not lead to an tendency to oppose "elitists" since they came from a top school. The vetting of people for Harvard or Yale Law is not a rigged system that automatic excludes whole classes and groups of people. Duds do get in and sometimes those who look good on paper have a routine and mundane career after graduation even from there. Yes it is expensive to get through the final years but by the time the filter of ability and success has weeded out the more ordinary, the most effective and brilliant tend to get to the final stages and financial aid and scholarships bridge the gap for the less solvent. That said, for the majority of students these schools are proving grounds for careers in more lucrative corporate careers at the top of the profession and that includes a mix of high minded people who make a positive contribution and those who are selling out for a lucrative but morally ambiguous career. Many brilliant legal minds do come from elsewhere and despite doing without all the contacts and inside advantages that go with a "Hale and Yarvard" background do become well known and highly regarded on a national level.

          It all boils down to not taking the easy automatic "name brand" route and spread a wider net. But the wider net approach could be abused as well. Conservatives might like this to be able to get a stealth pro-life candidate... and likewise progressives might get a liberal in conservative clothing.... Balance does not mean excluding people with a Harvard or Yale law degree to achieve some sort of fairness or conversely going "Elite" all the way as a cover to railroad in a specific candidate that an administration or think tank hopes/knows has the "right" thoughts.... If in the end we still end up with many from these 2 schools, that will not be surprising since they do produce so many brilliant legal minds. But they do not have a lock on outstanding legal competence and a less exclusive more wide reaching selection process must in a general sense be better for any democracy.

          Pogo & Murphy's Law, every time. Also "Trust but verify" - St. Ronnie

          by IreGyre on Sat May 02, 2009 at 01:40:19 AM PDT

          [ Parent ]

  •  Well Here's The Thing (0+ / 0-)

    Of our last twelve nominees for President, TEN of them have been Harvard or Yale graduates.  I suppose I could have voted for John McCain in order to break their vicious grip on power, but I think there are literally thousands (millions?) of criteria that are more important than where they went to school.

    I think this is also true of Supreme Court Justices.

    I would also be more sympathetic to your position if I had ever heard anyone say, "_____ can't possibly be on the Supreme Court!  He/She didn't even go to Harvard or Yale!"

    If spittle & tooth=vigor & youth Bill-O & Savage won't grow any older If wishes & dreams=bitches & beams We'll all live in skyscrapers bu

    by TooFolkGR on Fri May 01, 2009 at 01:02:28 PM PDT

  •  Put the best person on (1+ / 0-)
    Recommended by:

    "There is nothing wrong with America can't be cured by what is right with America" -Bill Clinton

    by SensibleDemocrat on Fri May 01, 2009 at 01:07:34 PM PDT

  •  Agree/disagree (0+ / 1-)
    Recommended by:
    Hidden by:

    There are plenty of brilliant lawyers who attended other law schools.  The oddity today is that even other Ivy League law schools are shut out.  I know many find graduates of the University of Pennsylvania and Cornell.  One of the sharpest law professor types I know graduated at the top of his class from the University of Wisconsin.

    I do not like Wardlaw, possibly because of her husand's politics.  She would not, though, be the first Hispanic on the Court. That honor falls to Justice Benjamin Cardozo.

    I would oppose anyone who practices in or was educated in California.  California has made itself into a separate nation.  Unless and until it rights itself, the folks whom it produces are simply not prepared to be part of something affecting the whole of the United States.  (I am a lawyer in Los Angeles County.)

    •  Justice Cardozo (0+ / 0-)

      I thought Justice Cardozo was Jewish of Portuguese decent?  Although some government institutions have an expansive definition of "Hispanic" to include all of the Iberian peninsula, I believe that the term typically does not include Portugal.

  •  8 white males, majority Catholic & Federalist (0+ / 0-)

    Society cult members.

    I don't care what college the new Supreme is.

    What really matters is they bring cultural and ethnic diversity to the court, that means women, hispanics, asians, african americans, gay males, lesbians, etc should be put on the court, of course chosen from the pool of the best liberal legal minds.

    Children in the U.S... detained [against] intl. & domestic standards." --Amnesty Internati

    by doinaheckuvanutjob on Fri May 01, 2009 at 02:28:39 PM PDT

  •  Lawyers (IANAL) get chosen a lot (0+ / 0-)

    because theoretically they develop critical thinking skills in law school, and I think critical thinking is the issue here - and a scientist could probably do as well or better than many lawyers. As well as other disciplines, even social sciences.

    Lawyer, n. One Skilled in circumvention of the law.

    A. Bierce

    "red hair and black leather, my favorite colour scheme" - Richard Thompson

    by blindcynic on Fri May 01, 2009 at 03:22:22 PM PDT

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