Democrats have already issued their pro forma denunciations of Donald Trump’s Supreme Court nominee Brett Kavanaugh. Some are more pro forma than others, such as one press release dismissing Kavanaugh as an “extremist”—except it was clearly written before the announcement, and someone forgot to include the actual name of the nominee, so it merely denounces the placeholder “XX.”
Meanwhile, religious conservatives are disappointed that Trump passed over Amy Coney Barrett—a devout Catholic, mother of seven, and guaranteed vote to overturn Roe v. Wade. (They’ll get over it.) My own objection is, in some way, much smaller and more niggling, but it points to a problem that is big and getting bigger. The only thing that really bothers me about the Kavanaugh appointment is that he’s from Yale. Again.
A look at the educational backgrounds of the current Supreme Court justices shows they went to law school at Harvard and Yale. All of them. The only semi-exception is Ruth Bader Ginsburg, who went to Harvard before transferring to Columbia University. The only way to differentiate them from each other is by listing which school they attended for their undergraduate degrees, though even this doesn’t help much.
Sure, there’s Clarence Thomas’s undergrad degree from College of the Holy Cross. But John Roberts went to Harvard before going to Harvard, and Kavanaugh mirrors that path, having gone to Yale before really mixing it up and going to Yale. Three justices have undergraduate degrees from Princeton, and several others from Stanford.
In short, a shot at one of the top jobs in the federal judiciary seems to be the exclusive perk of attending just two law schools and a small number of elite undergraduate schools. The attitude behind this is summed up in an article noting this pattern back when Elena Kagan was nominated to the Supreme Court, which described the case against Harvard/Yale domination by dragging out an old quote from former senator Roman Hruska: “There are a lot of mediocre judges and people and lawyers. They’re entitled to a little representation, aren’t they?”
I’m pretty sure this is supposed to be a joke, though it’s always hard to tell, but the implication is that anyone not from Harvard or Yale is mediocre, as if there are only two good schools in this country and only a few hundred really talented students.
I don’t have any direct interest in any of this. I have no law degree from anywhere, I have no aspirations to political office, and nobody needs to have an inferiority complex about graduating from the University of Chicago. My concern is how this narrows the range of options and range of thinking at the top of our legal system.
When a system is composed entirely of elites who all went to the same institutions and all received essentially the same education, they will all tend to think about issues in similar ways. If not for the Federalist Society, they would never encounter a legal perspective from the Right. But even the Supreme Court’s conservatives will be operating within a spectrum of ideas shaped by the few institutions they go through.
The whole things reminds me of the French énarques, graduates of the elite Ecole Nationale d’Administration, the National School of Administration, which populates the French civil service and most of the country’s top political offices. This is not a democracy, it’s a clerisy, a system of rule by an educated elite. It’s a system in which the direction of the country is influenced more by the appointment of professors to an elite institution than by the preferences of voters. That’s the lesson for us. The French system is supposed to be a meritocracy, but it actually serves to entrench the power of an unaccountable institution.
Maybe it’s true that the top law schools attract the brightest and certainly the most ambitious young people. It’s certainly true that it’s easy for politicians to use a judicial nominee’s degree from one of these institutions as a seal of approval and a way of a deflecting criticism. (“How dare you reject my nominee, he’s from Harvard.”) But it’s also a way of outsourcing all of the nation’s legal thinking to the faculty lounges at Harvard and Yale.
It didn’t use to be this way. Supreme Court justices used to be drawn from a wide variety of schools—and in the days before higher education cemented itself into a clerisy, many justices were self-educated and had no formal law degree at all. It seems like a healthier, more vibrant, more open-minded way to seek out legal talent and legal ideas.
The Supreme Court is not meant to be a closed guild. Some future president should stop treating it like one and have the courage to name a distinguished nominee from an undistinguished school.
Robert Tracinski is a senior writer for The Federalist. His work can also be found at The Tracinski Letter.