Christopher Edley, dean of Berkeley’s law school and a former Harvard law school professor, defends the fact that, if Elena Kagan is confirmed, the entire U.S. Supreme Court will consist of graduates of Harvard and Yale law schools. He argues that the Supreme Court should contain the cream of the legal crop and that top law schools will produce much, though certainly not all, of that cream.
I found Edley’s piece meandering and not particularly worthwhile. In my view, there isn’t much to discuss here – the law school attended by a nominee should be considered neither a plus nor a minus, and it shouldn’t matter whether all or most of the Justices happen to have attended the same small group of schools.
To me, the interesting thing about Kagan’s Harvard connection is not that it’s shared by other Justices. What interests me is the fact that her Harvard connection is her claim to fame and, indeed, her main credential. In this respect, Kagan differs from the eight Justices with whom she would serve. For each of them, the law school connection was immaterial or incidental. No reporter in identifying these individuals for their readers at the time of the nomination would have mentioned Harvard or Yale except perhaps as an afterthought.
Kagan, by contrast, is routinely identified as the former dean of Harvard law school, and for good reason. She has no judging experience and little experience practicing law; nor did she make much of a mark as a legal scholar. Arguably, then, it is Harvard, if anything, that gives her the gravitas (or perhaps I should say cachet) one would expect of a Supreme Court nominee.
Kagan, then, can be viewed as an elitist nominee in the bad sense. The eight Justices with whom she would serve could claim, when nominated, to be elite by virtue of what they had accomplished without any reference to an elite institution of higher learning. Such a claim by Kagan would be tenuous.
Harvard law school, and how one views it, is therefore an issue in Kagan’s nomination, not because she went there but because she remained there and ended up running it, and because her other credentials seem thin for a Supreme Court Justice.
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