Keeping up Pretenses

The Supreme Court, as most of you know, has become completely dominated by the Harvard/Yale law-Ivy League undergrad-federal appellate judge paradigm. Despite’s Trump’s noises about broadening the base, Gorsuch exemplifies it. While it’s not the worst thing to derive from the self-regard of America’s elites, it also doesn’t really make sense theoretically or historically. While there are various reasons for this, one reason is that the increasing polarization of the Court — which is about to accelerate as the median shifts well to the left or right — has created a felt need to pretend that being a Supreme Court justice is about technical competence rather than politics. I have an article in the Chronicle of Higher Ed about this:

Every one of the eight justices now on the Supreme Court (as well as the late Scalia) received a law degree from Harvard or Yale, with the exception of Ruth Bader Ginsburg, who started at Harvard but had to settle for Columbia to finish. Every current justice was also a federal appellate judge when nominated to the court, with the exception of Elena Kagan, who was solicitor general at the time of her nomination. Clarence Thomas, an alumnus of Holy Cross, is the only current justice who didn’t receive an undergraduate degree from the Ivy League or Stanford (which very likely explains why he’s more inclined to look for talent outside the Ivy League when hiring clerks). Of the justices nominated to the court since President Richard Nixon left office, the only one who hadn’t received a law degree from Harvard, Yale, or Stanford — the perennial top three of the U.S. News law-school rankings — was John Paul Stevens, the first post-Nixon nominee, who received his law degree from Northwestern in 1947.

During the campaign, Trump hinted that he might break with the longstanding credentialist homogeneity of the court. A 21-judge shortlist he issued in September 2016 ranged well beyond the Ivy League, focusing on state and federal appellate judges from noncoastal circuits, with a wide range of educational backgrounds. “If the list has a main theme,” observed the New York Times Supreme Court reporter Adam Liptak, “it is that there are plenty of good judges who went to law school at places like Notre Dame, Marquette, the University of Georgia, and the University of Miami.”

But Trump went with the Ivy Leaguer. It’s a shame because a Supreme Court confined to just graduates of ultra-elite law schools is neither necessary nor desirable. Beyond that, the Gorsuch pick suggests that this reliance on such qualifications is a way to disguise the coming ideological polarization of the Supreme Court. In other words, as the Court has become more enmeshed in our extremely polarized politics, elite credentials have become a way to preserve the myth of a high court insulated from partisanship.

[…]

The blockade of Garland, then, is just the beginning. As the ideological stakes increase, we’re going to see more short-staffed courts, as staffing the federal judiciary, including the Supreme Court, during times of divided government becomes increasingly difficult. The growing dominance of federal appellate judges with Harvard or Yale J.D.s seems at least in part a way of obfuscating the stakes, of pretending that Supreme Court nominations are about formal qualifications rather than about politics.

And yet — it’s not working. Garland’s impeccable résumé didn’t get him a hearing. And despite Gorsuch’s similarly impressive credentials, he was confirmed only after a Democratic filibuster was overcome with an unprecedented change in Senate rules. The norm that senators from both parties should defer to any Supreme Court nominee who is formally qualified is over.

So perhaps it’s time for presidents to end the Harvard/Yale monopoly on the Supreme Court. Many other potential justices are well qualified, and there is no logical or historical reason for the practice to continue. Eventually, as polarization becomes too obvious to ignore, elite academic credentials will no longer be as salient as they are now, and presidents may well consider nominees from outside the Ivy League again.

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