Jennifer Mnookin, dean of University of California at Los Angeles School of Law, was flooded with texts and Facebook messages from her faculty within hours of the news that U.S. Supreme Court Justice Antonin Scalia had died.
Some professors speculated that two of the school’s alumni—Paul Watford and Jackie Nguyen, judges on the U.S. Court of Appeals for the Ninth Circuit—could be nominated by President Barack Obama to replace Scalia. A day later, Watford and Nguyen landed on several short lists of potential nominees put forth by pundits and court watchers, giving rise to hope that the Los Angeles law school might have its first alum on the court.
Mnookin said Thursday that she was excited both to see some of UCLA’s alumni judges mentioned as potential nominees and “to see potential nominees that go beyond the usual Harvard/Yale/Stanford dynamic.”
Graduates of Harvard Law School and Yale Law School have dominated the court for the past two decades, and each sitting justice attended one of those schools. (Ruth Bader Ginsburg graduated from Columbia Law School after transferring from Harvard.) According to data compiled by Lee Epstein, a professor at Washington University in St. Louis School of Law, eight of the 25 justices appointed to the court since 1954 graduated from Harvard. Five obtained their law degrees from Yale, and two each graduated from Stanford Law School and Northwestern University Pritzker School of Law.
But about half of the potential nominees now garnering attention would break out of the Harvard and Yale mold.
In addition to UCLA law grads Watford and Nguyen, potential nominees without Ivy League law degrees discussed by pundits have included Diane Wood, a judge on the U.S. Court of Appeals for the Seventh Circuit and graduate of the University of Texas School of Law and Kamala Harris, the California Attorney General and a graduate of the University of California Hastings College of the Law (who earlier this week told the San Jose Mercury News that she’s focusing on her U.S. Senate race and isn’t putting her name in contention).
Sen. Elizabeth Warren, D-Massachusetts, a graduate of Rutgers School of Law–Newark, has also been discussed in some circles.
Law school deans like Mnookin eagerly anticipate the possibility of having a justice from these schools that haven’t been recently represented on the court.
Obama would be wise to consider candidates from a broader array of law campuses, said Yale Law School alumnus Richard Garnett, a professor at University of Notre Dame Law School who clerked for William Rehnquist. “It would seem a good practice—a good thing for the bench and the administration of justice” if those who have the job of nominating potential judges “cast a wide net,” Garnett said.
Geographic, religious, educational and racial diversity give the court a broader range of perspectives when weighing key legal issues, say advocates for greater heterogeneity in judicial appointments.
The educational homogeneity of the court generated public hand-wringing in 2010 during Kagan’s confirmation hearings. Sonia Sotomayor, Clarence Thomas and Samuel Alito Jr. acknowledged the need for greater geographic, educational and professional diversity during a talk at their alma mater Yale Law School in 2014. “I think we have to be concerned that almost all of us are from two law schools,” The New York Times quoted Thomas saying.
David Faigman, interim dean at Hastings, echoed that sentiment. “It’s not only that they all went to Harvard or Yale, it’s that they are all essentially from the five boroughs of New York,” he said. “I think that’s a mistake.”
Harvard Law professor Charles Fried said that the preoccupation with where the justices attended law school is unhelpful, particularly because Harvard students come from a wide range of ethnicities, educational backgrounds and income levels—each of which are more important factors than the name on a judge’s law degree. “What’s more important [than their law alma matter] is their ability, their knowledge, how much they’ve learned and how good they are,” Fried said.
Similarly, Yale Law spokeswoman Janet Conroy said that the law school produces graduates with a wide range of experiences and viewpoints. “Yale Law School has always sought to educate and empower an extremely diverse group of students, with an extremely diverse set of views. Our efforts are reflected in the justices from Yale Law School who currently serve on the court.”
Benefits to law schools
Having justices who graduated from other law schools would also benefit the institutions themselves, Faigman said. “Harvard and Yale are, in some sense, Harvard and Yale because of the success of their graduates,” he said. “We’ve had many successful graduates, including Attorney General Harris. Having those high-profile success stories—and certainly the U.S. Supreme Court is about as high-profile of a success story as you can get—would be a great boost for our institution.”
An alum on the court could also result in more graduates from that school landing prestigious Supreme Court clerkships, said Todd Peppers, a visiting professor at Washington and Lee University School of Law and author of several books about clerks.
“I think it makes a huge difference,” Peppers said. “Justices typically have looked to the schools they graduated from and the regions of the country they are from. Historically, that has been a pretty small pool.”
Supreme Court justices often rely on former clerks to help choose incoming clerks, which creates an echo chamber of Harvard and Yale graduates selecting candidates similar to themselves, he added. A similar phenomenon exists with so-called feeder judges, as many of them also have Harvard and Yale degrees.
“I certainly won’t say that having a lot of Harvard justices is a bad thing,” said Harvard law professor Richard Lazarus, who attributes the school’s long roster of high court judges to its large size, elite reputation, and commitment to admitting students with from a broad array of backgrounds and states who display leadership qualities.
In addition to the group of potential nominees from outside of the Ivy League, Harvard Law School is once again, well represented. U.S. Attorney General Loretta Lynch; U.S. Court of Appeals for the D.C. Circuit Judges Merrick Garland and Patricia Millett; and Jane Kelly of the Eighth Circuit all graduated from the Cambridge, Massachusetts, law school.
Derek Muller, a professor at Pepperdine University School of Law who has studied clerkship trends, pointed to comments Scalia made in 2009 at American University Washington College of Law explaining that he tended to hire from the top law schools because they are the hardest to get into. Judges are “risk-averse” in their selection of clerks, hence sticking to Ivy League law graduates is a relatively easy way to filter the applicant pool, he said.
Mnookin welcomed the possibility of more Supreme Court clerkship opportunities for UCLA graduates, in addition to the more intangible benefits of having an alum on the high court.
“It would be a recognition of the quality of our law school,” she said. “It would be something our students, faculty and alumni would be very proud of.”