Harvard Law School's shield
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Want a seat on the U.S. Supreme Court? An elite law degree will help.
If nominee Elena Kagan is confirmed to the U.S. Supreme Court, the nine-member body will be made up entirely of judges educated at either Harvard Law School or Yale Law School -- an unusually homogenous group as far as educational background, according to several law professors. (Ruth Bader Ginsburg started law school at Harvard, but transferred to Columbia Law School -- firmly within the Ivy League -- when her husband took a job in New York.)
While legal academics agreed that it is unusual to have so many Harvard and Yale graduates on the court at the same time, there was no consensus as to what that means. Some professors expressed concern that a stable of judges with nearly identical educational backgrounds would narrow the Court's perspective. Others dismissed the situation as a fluke, reflecting only that those schools produce talented and driven lawyers.
"I don't think there's any enormous significance to it," said Richard Friedman, a professor at the University of Michigan Law School (which ranked 9th on U.S. News & World Report's 2010 law school list and hasn't had an alumnus on the Supreme Court since 1949).
"You want smart, well-trained lawyers on the Supreme Court, and most of them go to the best schools -- though not all smart lawyers go to Harvard and Yale," Friedman said. "These are great law schools, and they've been great law schools for a long time."
Harvard has sent more graduates to the Court than any other law school -- 14. Yale and Columbia are not far behind, with nine justices.
"All things being equal, it would be nice to have justices from a few other law schools to show there is a good cross-section," said Jeffrey Fisher, a professor at Stanford Law School. He noted that postgraduate experience is a more important criterion than alma mater for picking a Supreme Court nominee. "But Stanford has had justices in the past, and I assume we will again in the future. The people who went to top law schools will get the top jobs. It seems to be a bit of an accident right now that there are only two schools represented."
Some academics insisted that the Court would benefit from broader academic and geographic diversity.
"I'm a little uncomfortable with it, because it suggests a certain narrowness in being considered for top positions," said Giovanna Shay, a Yale law graduate and associate professor at Western New England College School of Law. "Having such a similarity of life experience, there are some dangers in that. I get concerned about barriers to entry and fairness. How diverse is the pool at these elite schools?"
Of the 10 candidates reportedly on President Obama's nominee short list, four received their juris doctor from Harvard, one from Yale and two from the University of Virginia School of Law. Emory University School of Law, the University of Texas School of Law and the University of Montana School of Law each had one graduate on the reported shortlist.
The Supreme Court has been slightly more educationally diverse in the recent past, although still rooted in top-tier schools: Justice John Paul Stevens, whose seat Kagan would fill, went to Northwestern University School of Law. Both Sandra Day O'Connor and William Rehnquist went to Stanford Law School.
For the record, justices John Roberts, Antonin Scalia, Anthony Kennedy and Stephen Breyer went to Harvard, while Clarence Thomas, Sonia Sotomayor and Samuel Alito went to Yale.
Harvard Law professor Mark Tushnet said he was pleased at Kagan's nomination, but not with the concentration of judges matriculating from Harvard and Yale.
"I think it's a bad thing. The next time around, it would be good if the president looked at someone with a different educational background," he said. "The very best law students at virtually any law school are as good as the best students at Harvard or Yale. There are just fewer of them."
Tushnet noted that the relevant networks for those who want to be considered seriously for the Court have narrowed. Harvard and Yale have broken away from the pack in placing students into those networks, he said.
Federal clerkships are often cited as a key step toward the Court, and Yale sends the highest proportion of its graduates to federal clerkships, according to U.S. News & World Report. Stanford and Harvard round out the top three.
A degree from Harvard or Yale may well help smooth out the nomination process, said University of Chicago Law School professor Brian Leiter. Senators are less likely to question the intellectual capacity of a nominee with an Ivy League pedigree, he said.
Tushnet noted that Harriet Miers' degree from Southern Methodist University Dedman School of Law (lately ranked 48 by U.S. News) was one of several liabilities in her ill-fated 2005 Supreme Court nomination.
Several academics pointed out that Harvard produces far more graduates each year than other top law schools. Therefore, it's not surprising that its alumni are well represented on the court.
"We relish the accomplishments of all our graduates," said Friedman, the Michigan law professor. "It would be very nice to have one of our own on the court. Maybe next time."
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