If Elena Kagan is confirmed as the next Supreme Court justice, all nine members of the highest court in the land will be graduates of the nation's two most exclusive law schools - Harvard and Yale. Christopher Edley, a former law professor at Harvard Law School when Kagan was its dean, defends this likely outcome, arguing that we should prefer judges with excellence and that schools such as Harvard and Yale are part of an "elite meritocracy" whose selectiveness generally filters out all but the excellent. In what follows, I suggest that Edley, now dean of UC Berkeley School of Law, misses the mark and that the elitist composition of the Supreme Court is problematic notwithstanding Edley's apologia.
In touting excellence as the touchstone of a quality justice, Edley contends that what matters on the Supreme Court is "intellectual horsepower," "wisdom and analysis," and "not personal experiences." But a judge's intellect, wisdom, and analytical abilities are informed by, if not dependent upon, his or her personal experiences. In The Common Law, Justice Oliver Wendell Holmes astutely observed that, "The life of the law has not been logic: it has been experience." University of Chicago law professor and federal appellate court judge Richard A. Posner similarly stated that there is "a considerable residue of cases . . . against which logic and science will be unavailing and practical reason will break its often none-too-sturdy lance." "Practical reason," Posner explains, consists of "anecdote, introspection, imagination, common sense, empathy . . . , metaphor, analogy, precedent, custom, memory, 'experience,' intuition, and induction," among other things.
That personal experiences play a critical role in the development of the law is more than legal theory - it is confirmed by Supreme Court history. Justice Holmes's experience as a civil war veteran, for example, clearly shaped his judicial decisionmaking. As Jeffrey Rosen notes, "Holmes insisted that his three years as a lieutenant in the Civil War had influenced his judicial philosophy even more than his thirty years on the Supreme Court." Moreover, Justice John Paul Stevens - the man Kagan is tapped to replace - served in the U.S. Navy during World War II, which enlarged his perspectives on various legal issues, especially national security, foreign affairs, and claims of executive authority. Practical experience is thus important. Edley's belief to the contrary, that "Kagan has excelled in the legal field" and that this "ought to be enough," is unconvincing.
Edley seems to believe that conversations surrounding practical experience are a mere sideshow or naked effort to humanize an otherwise smart individual. He writes that "to be safe," Kagan "must explain what beer she drinks while slugging softballs." This sarcastic comment completely ignores the substantive value that one's background and life experiences have on one's view of the law, as demonstrated by Justices Holmes's and Stevens's tenures on the Court. It dodges the question of what, if anything, in Kagan's biography or her writings indicates that she possesses life experiences that can enrich her understanding (and by extension her prospective colleagues' collective understanding) of the law, or that she possesses a particular appreciation for certain individuals, groups, or communities that will appear before her. This inquiry is not designed to determine whether she is an "ordinary" person, as Edley derisively remarks, but to ensure she is extraordinary in terms of her rational thinking and practical reason. (Edley mentions his wife, who "grew up picking crops in an immigrant farmworker family," but one wishes Edley could point to something, anything, in Kagan's life as similar evidence of her empathy.)
Assuming that excellence alone defines an appropriate Supreme Court justice, Edley acknowledges that elite schools do not have a monopoly on excellence - some "good people" are "denied entry" and are consequently compelled to study elsewhere. And he admits that there have been some "false positives," that is, "not-so-good people mistakenly admitted to elite settings." But he fails to concede that because not every student at an elite school is "good," elite schools are not a proxy for excellent students. Edley does not provide any information showing that elite schools measure or identify excellence any more accurately or reliably as compared to other schools, nor does he give meaningful credit to the fact that some quality students opt to attend non-elite schools for financial, geographic, family, or other reasons, including attractive and affordable programs at state schools. (Financial limitations and admissions considerations, such as "legacy" relationships or membership to an underrepresented minority group, cut against Edley's attempt to associate Berkeley and other elite law schools with merit-based democratic institutions.)
Even if all students at elite schools are not excellent as a matter of fact, the perception exists nonetheless that the uppermost echelons of professional success are restricted to those who attend Harvard, Yale, and the other Ivies. Indeed, Kagan's nomination sends a powerful message to aspiring lawyers, law students, attorneys, and the general public: you must graduate from an elite law school in order to be a Supreme Court justice and thereby reach the height of American legal practice. In an age when President Obama's ascendance was thought to shatter certain glass ceilings, his selection of Kagan perpetuates another: the dominance of elite schools, including his own, over the top strata of American governance and public service.
Thomas Jefferson, founder of the University of Virginia, believed in a "natural aristocracy" in which "merit and talent," not "connections and influence," were to be the proper criteria for selecting our leaders. This is not to say that Kagan herself is without merit. She is amply qualified for the post of Supreme Court justice. But her nomination comes at a cost - the reinforced perception that merit matters, and it matters most when it has been validated by certain rarefied institutions. In picking Kagan, Obama regrettably bypassed the opportunity to send a different statement to youth and the people - sadder still is that Edley does not appear to think a different statement is needed at all.
Dave Sidhu is a founding director of the Discrimination and National Security Initiative (DNSI) and a fellow at the Pluralism Project at Harvard University.