Nominee perpetuates education elitism

May 17, 2010


If confirmed as a Supreme Court justice, Elena Kagan will bring greater diversity to the court by adding a third woman. What she will not bring is educational diversity. Her confirmation will leave the court entirely composed of former law students at either Harvard or Yale.

The decision of President Obama to select a nominee from one of these two schools is particularly disappointing as a replacement for Justice John Paul Stevens — an iconic figure on the court who was also its only graduate from an alternative institution (Northwestern). Kagan will join fellow Harvard graduates Chief Justice John G. Roberts Jr. and Associate Justices Antonin Scalia, Stephen G. Breyer and Anthony M. Kennedy. This leaves three justices from Yale (Clarence Thomas, Samuel A. Alito Jr. and Sonia Sotomayor). Associate Justice Ruth Bader Ginsburg also attended Harvard but graduated from Columbia.

Why should we care? When you virtually exclude all but two of the nation’s 160 law schools as sources for justices, it not only reduces the number of outstanding candidates but guarantees a certain insularity in training and influences on the court. This bias is not only elitist but decidedly anti-intellectual.

Moreover, there is no objective basis for favoring these two schools. Annual rankings from law schools on publication or reputation or student scores show relatively small differences in the top 20 law schools. The actual scores of the small pool of students in the top tier vary by only a few points. While Harvard and Yale are routinely ranked in the top spots, the faculties and student bodies are not viewed as manifestly superior to such competitors as Stanford, Chicago, Michigan or other top schools.

If Obama had looked more broadly at outstanding graduates from other schools, he might have found someone with more professional experience, a more extensive writing record or some actual experience in the judiciary. What Kagan had was a Harvard connection and one of the most powerful legal cartels behind her. When challenged on this obvious bias in favor of two schools, leaders usually insist that it is just coincidence. Ironically, the federal government has long rejected the claims of businesses that insist their failure to hire from certain groups, such as women or minorities, is unintentional.

The United States leads the world in legal education, but you would not know that from the roster of justices. Obama preferred Kagan, for example, over such potential choices as U.S. 7th Circuit Judge Diane Wood, who is generally viewed as one of the most brilliant minds on the federal bench and who has a lengthy record of both opinions and legal writing. She also graduated from the University of Texas. There are dozens of such jurists and lawyers who are leaders in their fields from different geographic and educational backgrounds.

Elitism on the court is open and raw. For those not familiar with it, consider Scalia’s recent remarks to a student at American University’s Law School. He said that she should not expect to be considered for a Supreme Court clerkship given the school she attended. Scalia explained: “By and large, I’m going to be picking from the law schools that basically are the hardest to get into. They admit the best and the brightest ... and if they come in the best and the brightest, they’re probably going to leave the best and the brightest, OK?”

Many in the audience were not happy, but at least Scalia was being honest about the raging elitism at the Supreme Court. It is, of course, ridiculous to suggest that the top student at American is not competitive with the top students from Harvard. However, this prejudice against non-elite schools is perpetuated by justices like Scalia who rarely look beyond the top five schools for clerks.

Nominations like Kagan’s are the result of a network of graduates who work consciously or unconsciously to see that their own are nominated. Notably, after Kagan’s nomination, powerful figures from her Harvard years came forward to vouch for her abilities. Their message was the same: Despite her lack of a record, she is known in our circle as a real winner. She is, in a phrase, one of us. Indeed, reporters breathlessly reported how Kagan and Scalia are good friends and how she knows many of the main players from Harvard, as if it is the judicial equivalent to having graduated from the Hogwarts School of Witchcraft and Wizardry.

The favoritism shown Harvard and Yale should be viewed not just as incestuous but as scandalous. It undermines educational institutions across the country by maintaining a clearly arbitrary and capricious basis for selection. It also runs against the grain of a nation based on meritocracy and opportunity.

If there is one place in the world that should be free of such baseless bias, it is the Supreme Court of the United States. But that would require looking a bit west and south from the banks of the Charles River.

Jonathan Turley is a professor of law at George Washington University, where he teaches a course on the Supreme Court. He wrote this for the Los Angeles Times.


Maddy Griffin 7 years, 10 months ago

She wouldn't be ridiculed so badly if it hadn't taken her 5 different schools to get that BS. Or if she ever finished anything else she started.

cowboy 7 years, 10 months ago

Professor Turley is a great legal mind , this criticism may well be a bit of professional jealousy though . Where would you like the nominees to come from ? ITT paralegal program , or perhaps Holiday Inn Express.

Stuart Evans 7 years, 10 months ago

This just furthers my speculation that the world is run by a tight-knit group of people. And it looks like they must have some ties to Harvard and Yale. They pick our presidents and our justices, they own our banks and our federal reserve; demanding wars, and influencing trade. Who are these people?!

jaywalker 7 years, 10 months ago

Brilliant, cowboy. You admit Turley is a "great legal mind", but then denigrate his point with such sarcastic alternatives? Yes, I'm certain you're right and he would prefer someone sub-par from a severely lesser-institution. Obviously that's the suggestion he was trying to get across. Cheese and rice...

anon1958 7 years, 10 months ago

Implicit in Turley's argument is the assumption that one of Obama's criterion for selecting a nominee is that they are a graduate of Yale or Harvard. This is assumption is absurd and making arguments from ridiculous assumptions are not the hallmark of a "great mind" they are the usual way of crybaby right-wing anti-intellectuals that believe the Tea Party is the vanguard of the next great revolution.

cowboy 7 years, 10 months ago

I did not mean to imply that Turley wanted ITT paralegals. The top legal candidates in our country come from Harvard & Yale and a few others. It is only logical that these institutions would produce the nations best.

Turley is far from a right wing anti-intellectual , about as far as you can get. Read his Bio

Ralph Reed 7 years, 10 months ago

@Tom: Well done. You hit a three-bagger in your 0541. Somehow I expected that, but well done anyway.

I really wonder why Turley chose not to speak up during previous administrations. I also wonder why he chose to use sarcasm as his verbal weapon of choice, "...as if it is the judicial equivalent to having graduated from the Hogwarts School of Witchcraft and Wizardry." Once I read that line I placed his entire OPED in the same class as some of the right-wing posters here and essentially disregarded it.

A final question is why did it take so long for Turley to come forward with this odd piece of statistical information? It's almost as if he had to look hard to find something bad to write until he chose the "elitist" attack.

Jay Keffer 7 years, 9 months ago

Unbelieveable how much you love this perverted name for the Tea Party. What weird visual do you get from using it? Sick.

Flap Doodle 7 years, 10 months ago

You have to wonder how much the pay-to-play for a Supreme Court seat is under the current regime.

ivalueamerica 7 years, 10 months ago

ok, so many of you do not like her sex or when she went to school or that she knows Obama.

She is a legal scholar and accomplished lawyer.

Can any of you point to anything that shows she is not qualified for the job? Or is it just that you do not like her?

Maddy Griffin 7 years, 10 months ago

She may have never been a judge herself, but she did clerk for Justice Thurgood Marshall when he was on the SC. 8 out of the 17 Justices of this century have had NO judicial experience.

drake 7 years, 10 months ago

..............and she stayed at a Holiday Inn Express last night.

ivalueamerica 7 years, 10 months ago

there have been many justices without judicial experience, but came with a firm knowledge of the Constitution and did quite well. Again, can you give me any documentable reason this person can not?

You only tell lies Tom, own it, embrace, be proud of who you are, not ashamed.

just_another_bozo_on_this_bus 7 years, 10 months ago

Funny thing is, if the same argument had been made against Bush's Harvard or Yale nominees, Tom and the other professional teabag whiners would be howling about now.

Flap Doodle 7 years, 10 months ago

When will the steamers from the sinister side of the aisle come up with a justification for Dear Leader's mistakes beyond whimpering, "but, that mean old Bush did it too"? Still waiting.

gr3sam 7 years, 10 months ago

I agree with Turley. However, a "clearly arbitrary and capricious basis for selection," has endured on the court forever. One must remember that these are purely political appointments by the President. "To the victor go the spoils." The remedy is a President with a different view than we've had for the past several elections.

That it "also runs against the grain of a nation based on meritocracy and opportunity," is wholly consistent with Mr. Obama's goals of socialism, generally.

just_another_bozo_on_this_bus 7 years, 10 months ago

Obama is getting plenty of criticism from the left, snap. Considerably more than Bush/Cheney did from the right, who are very disciplined in falling into lock(goose)step when someone from their team is in charge, even when they're complete dbags like Bush/Cheney.

july241983 7 years, 10 months ago

Well, in Bush's years, there were non-Harvard/Yale member(s) on the court. After this selection, there will be none. The point of the entire court being from two schools wasn't applicable for Bush's nominees, so it wasn't made into such a big deal (maybe it should have been). And, I think Bush nominated Harriet Myers, who I'm pretty confident was not Harvard or Yale educated- after her nomination went nowhere, that's when Bush nominated Alito.

That being said, it looks like Ms. Kagan is qualified for SCOTUS, and she should probably be confirmed. But, it still would be nice to see someone who wasn't from Harvard or Yale.

Chris Golledge 7 years, 10 months ago

How does Turley know that Kagan was chosen over the other candidates because of which school she attended?

geekyhost 7 years, 10 months ago

Would you have said the same thing about Roberts, who also had a middle class upbringing and was young at the point of his nomination? Or is it ok if you're a white male with a middle class and rather elitist upbringing?

Flap Doodle 7 years, 10 months ago

In other news, comedy gold from Dear Leader: “Washington (CNN) - After the signing of the Freedom of Press Act on Monday, President Obama declined to take any questions from the press. During a pooled press event in the Oval Office, President Obama was asked if he would take a couple questions. "You're certainly free to ask the question," Obama told the reporters in the room. "I won't be answering, I'm not doing a press conference today, but we'll be seeing you in the course of the week."…” http://politicalticker.blogs.cnn.com/2010/05/17/obama-doesnt-take-questions-at-freedom-of-press-act-signing/?fbid=WzXGM846Mf8

Kirk Larson 7 years, 10 months ago

What school they went to is only a small part of their qualifications. More importantly what did they do after school. Sure there are people from other schools who do good things, but I don't mind them coming from the top schools. Frankly, I want the country to be run by intellectual elites, don't you? Better than half educated, can't keep up with current events, don't really understand history, intellectually incurious yokels, you betcha.

puddleglum 7 years, 10 months ago

if they go to harvard/yale-they are more easily controlled by the chip inserted in the back of their necks

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