Supreme Court's Ivy League lean is troubling

June 12, 2010 

You know what's wrong with this country? Really wrong? Forget President Obama. Forget Harry Reid, or spandex on the mirror-challenged, or nosy do-gooders or even cell phone users yakking in the fast lane. Forget all that.

It's lawyers. There are too many; too many who went to Ivy League schools; and, way too many who went to Ivy League schools and ended up on the Supreme Court so they can plague us for the rest of our lives -- and theirs.

Not everybody is happy about that. There is simmering agreement between Democrats and Republicans in the nation's capital that the next court vacancy should be filled by someone sans an Ivy League education.

"Newsweek" in April reported Bill Kristol -- editor of the influential "Weekly Standard" and a guy with strong ties to Harvard -- urged Obama (himself a Harvard Law School grad) to pick somebody without an Ivy League education as the next justice. It would, Kristol said, "be good to have a nominee that stood up against powerful interests like the elite law schools, which ... have done a lot of damage."

The high court now is little more than an Ivy League kaffeeklatsch, disproportionately packed with lawyers from the Harvard, Yale and Columbia law schools -- and has been for 50 years. Of the 111 justices appointed since the court's creation by the Judiciary Act in 1789, about a third came from those institutions.

Of those on the court now, Chief Justice John G. Roberts graduated from Harvard, as did Justices Antonin Scalia, Anthony M. Kennedy and Steven G. Breyer. Ruth Bader Ginsburg attended Harvard, but graduated from Columbia Law School. Clarence Thomas graduated from Yale Law School. So did Samuel Alito and Sonya Sotomayor. John Paul Stevens is the exception, graduating from Chicago's Northwestern University School of Law.

Only Kennedy, tapped by Ronald Reagan, was appointed from a state -- California -- west of the Mississippi. Two were picked from New York, and there was one each from Maryland, Virginia, Georgia, Massachusetts, New Jersey and Illinois -- yes, Kaskaskia, Ill., has been west of the Mississippi since 1881, when the river zigged out of its zag channel, but the state stayed put.

It does not look as if things will change immediately. Elena Kagan, Obama's increasingly worrisome pick to replace Stevens at the end of the 2009-2010 term, went to Princeton, Worcester College at Oxford University and then, of course, to Harvard Law School. Later, she became dean of the school. She would fit right into today's court.

That is problematic. Does anybody believe this bunch thinks like the rest of the country; that there is no Eastern bias. No, "Gee, what would the World Court think" tilt? Would somebody from a Western law school, outside the Ivy League orbit, not have a different take on many issues; be less likely to ignore the Constitution or twist it into a pretzel? What about geographical and educational diversity? Does any of that matter?

Geography did once. In this nation's infancy, presidents fretted about where Supreme Court justices called home. George Washington refrained from appointing two sitting justices from the same state, but by the end of the Civil War that was passé. Seats for a time were held for geographical and political reasons, and there are those who argue seats held by women or minorities today should continue to be held by women or minorities to foster intellectual diversity.

There are many similarities on today's court. Perhaps too many. All the justices have circuit court experience. Six have served as government attorneys in one capacity or another, and one, Sotomayor, was a trial judge. There are differences, too. Sex. Religion. Race. Age. All carry with them a certain weight.

It is that nagging sameness in their legal educations and professional histories that is bothersome. This is a large country with diverse points of view and takes on the law and the Constitution. That is not to say all Ivy League lawyers are liberals. That is not to say educations they received are not among the finest in the world. We, indeed, have been fortunate to have Alito, Scalia, Kennedy, Thomas and Roberts, especially in key constitutional decisions. But, as a nation, we would be better served if more justices came from places other than the urbanized East, bringing with them educations and professional experiences giving them different perspectives.

If confirmed, Kagan, unfortunately, will only be more of the same.


Paul Jenkins is editor of the Anchorage Daily Planet.

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