Legal Commentary

With the national media (and Tom Goldstein) reporting that the President will announce his nomination of Solicitor General Kagan to the SCOTUS in an hour, there is simply nothing else to post about this morning.  The N.Y. Times coverage notes something that may be of particular interest to readers of this blog: if Kagan is confirmed, the Court will be composed exclusively of graduates of Harvard and Yale law schools.  Is this a problem?

As a YLS graduate, I might be expected to feel that this is only appropriate.  (How did those Harvard folks get on the court, anyhow?)   Yet as a teacher at a non-Ivy law school, I do have some anti-elitist tendencies.  Personal affiliations and cheerleading aside, however, is it an institutional weakness, or simply the result of meritocracy?

On the one hand, it is not unusual for nations to have a couple of institutions that are pipelines to power (Sciences Po, Oxbridge).  And one could argue that the hard-driving, extremely bright people appointed to the Court in recent years simply would have matriculated at the most prestigious law schools, if for  no other reason than that they were competitive and ambitious.  The job of a Supreme Court justice is one of the few in Washington in which the actual appointee must do her own work, and it is work of a particular kind--analytical, abstract, and involving intensive research and writing.  Maybe these are skills best cultivated in a few elite settings, where future contenders joust with one another and mentors.

Even accepting that argument, however, why only Harvard and Yale?  What about Stanford, Columbia, Univ. of Chicago, Cornell, Cal?  And doesn't the U.S. pride itself on supposedly having a more open society, with broader educational choices and more paths to success?  What about breadth of experience and perspective, even if only geographic?  Aren't those important qualifications too?

Perhaps the Harvard-Yale block is simply a result of the law's old-fashioned credentialism.  As a member of my extended family delights in reminding me, there really are few metrics for measuring true excellence in the law.  So we use these imperfect heuristics like the U.S. News & World Reports rankings, or the judge for whom a nominee clerked.

Although the Harvard-Yale hegemony manifests a certain narrowness, I can't quite get worked up about it.  (Only a few years ago, O'Connor and Rehnquist, Stanford Law School classmates, served together on the Court.)  More troubling to me is the fact that the Justices do not have the type of broad legal experience that an advocate like Justice Marshall brought to the Court.  In today's legal environment, it is difficult to cultivate the elite experience and finely honed skills that are expected among the pool of SCOTUS picks, and to gain direct representation experience as well.  

Consider examples from my own field of study--criminal law.  Few justices have walked into a lock-up on a regular basis, counseled a juvenile regarding a plea, interviewed witnesses or survivors of violent crimes, or discussed the implications of a sentence with distraught family members.  These are experiences that cannot be fully conveyed in an amicus brief.  And we can expect to sometimes see the effects of that gap.