Friday, May 21, 2010

Should the whole Supreme Court come from two schools?

  

  

Graduates at Harvard law school

  

  

 

  The nomination of Elena Kagan to replace the retiring John Paul Stevens on the US Supreme Court means, if she is confirmed, all of the justices will have been at either Harvard or Yale law schools. But why should two educational bodies provide all of the US's most senior judges?

  It is really only a score of five-and-a-half for Harvard, some pundits would suggest.

  If Ms Kagan is confirmed as a Supreme Court justice, there will be five from Harvard law school, three from Yale law school and one from Columbia law school.

  

The court has become a bastion of the elite - it's sophisticated, north-eastern, highly cultured

 

  Prof Peter Hoffer

  But Ruth Bader Ginsburg started out at Harvard law school before transferring to Columbia.

  The inference could easily be drawn that the finest legal minds all come from just two of the US's law schools.

  It has also been pointed out that four of the court will be New Yorkers and that the court will consist of six Catholics and three Jews - no protestants.

  But should it aim to be representative on educational background, or anything else?

  For much of its history, a geographical spread of justices was the top priority, notes Peter Hoffer, distinguished research professor at the University of Georgia, and co-author of The Supreme Court: An Essential History.

  

HARVARD LAW GRADUATES

  731 degrees conferred last year

  402 male, 329 female

  Ethnicity: Asian/Pacific Islander (10%), Black/non-Hispanic (9%), 42 Hispanic (6%), International students (26%), Native American (1%), White/Non-Hispanic (40%), Unknown/other (8%)

  "Theoretically, the court is supposed to be divided among different parts of the country. Now we have gone past that - we are one nation, connected by the web and the media - that kind of geographical distinction is not so important any more."

  After the need for geographical diversity of the court ebbed, other priorities emerged.

  "As late as the 1960s you had a Catholic seat and a Jewish seat to ensure some kind of representation. It's rather ironic that now you have six Catholics and three Jews," says Prof Joel B Grossman, co-editor of The Oxford Companion to the Supreme Court of the United States.

  With white, black, and Hispanic justices on the court and both men and women represented, the court might seem heterogeneous but in terms of educational background it's become extremely homogeneous.

  

Elena Kagan

  Elena Kagan would be one of four New Yorkers on the court

  "The court has become a bastion of the elite - it's sophisticated, north-eastern, highly cultured," says Prof Hoffer.

  The retiring Justice John Paul Stevens finished his education at Northwestern law school in Chicago, a body with an excellent reputation. But new graduates of that school, nourishing hopes of rising to the pinnacle of their profession, might have cause to be pessimistic.

  "It must not be very encouraging for the vast majority of law students who are in school in the middle part of the country where there are some very good law schools, but they are not Harvard and Yale," says Tony Mauro, Supreme Court correspondent, at the American Law Magazine. "It is time to have a bit more diversity."

  It's not just the Supreme Court, of course. The prospects of Harvard law school graduates are high anywhere within the profession.

  "There is nothing quite like having Harvard Law school on your resume," says Mauro. "It just has a certain cachet that is hard to beat."

  Anyone defending the status quo might point out that Harvard and Yale do produce a stream of brilliant graduates, but there are of course brilliant graduates elsewhere too.

  

THE JUSTICES

  John Roberts: Harvard (undergraduate), Harvard (law school)

  Antonin Scalia: Georgetown, Harvard

  Anthony Kennedy: Stanford, Harvard

  Clarence Thomas: Holy Cross, Yale

  Ruth Bader Ginsburg: Cornell, Columbia (started Harvard)

  Stephen Breyer: Stanford, Harvard

  Samuel Alito: Princeton, Yale

  Sonia Sotomayor: Princeton, Yale

  John Paul Stevens: Chicago, Northwestern

  Nominee Elena Kagan: Princeton,

  Harvard

  "It is unfortunate Obama couldn't find somebody a little different," says Prof Grossman.

  But he jokes that no-one would want to go as far as 1960s and 70s Nebraska Senator Roman Hruska, who spoke up for the need for average candidates for the Supreme Court, after the nomination of Harrold Carswell.

  "Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they?" asked Hruska, to much derision.

  Most would now agree this is taking equal opportunities too far. And on a small body like the Supreme Court, it will always be tough to keep everyone happy.

  "There is only a limited number of ways you can divide up nine," says Prof Grossman.

  There are even allegations that the choice of clerks to the Supreme Court, an avenue to valuable experience for young graduates, is weighted towards certain schools.

  "There was a time when the law clerks all came from Harvard, not even Yale," says Prof Grossman. Sandra Day O'Connor and Thurgood Marshall helped change that, and Justice Clarence Thomas is known for picking clerks from less predictable backgrounds.

  "It turned out there are a lot of smart people they don't all go to Harvard law school," says Prof Grossman.

  "[But even] if you look at the clerks today a majority come from Harvard, Yale, Stanford, Columbia and Chicago."

  

Thurgood Marshall and LBJ

  There has been a long battle to make the court more diverse

  You can read too much into the number of prominent people that come from certain key schools, says Prof John Manning, from Harvard law school.

  "There are very many great law schools in this country. This is a moment in history where there are just an unusually high number of people who attended three law schools - Harvard, Yale and Columbia. I don't think it will always be this way."

  But he suggests people often get the wrong idea about the social backgrounds of students.

  "We have a very generous programme of financial aid. People think of Harvard and Yale as being these elite homogenous places but we really have a large and diverse class coming from many different backgrounds and places.

  "It isn't like we are taking a tiny slice of Boston high society."

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