Supremely Identical

Nominees’ similar career paths, not educations, are real problem for Supreme Court

Much has been made of what several years ago, NPR called “The Harvard-Yalification of the Supreme Court.” In a speech at Georgetown University last June, the late Supreme Court justice Antonin Scalia pointed out that all nine justices had studied at either Harvard or Yale Law School. (Eight graduated from one of the institutions, while Justice Ruth Bader Ginsburg began at Harvard and graduated from Columbia.)

President Barack Obama’s nominee to replace Scalia, Chief Judge Merrick B. Garland ’74 of the United States Court of Appeals for the District of Columbia Circuit attended both Harvard College and Law School and would restore Harvard’s six to three lead over Yale for representation on the Court. While this homogeneity is often criticized, we do not believe it is the most significant problem facing the institution. Supreme Court justices should be jurists at the peak of their profession, and it is not unreasonable for the president to look to graduates of the nation’s top law schools for qualified candidates.

More troubling are the very similar paths that recent appointees have taken to the highest court in the land. Of the eight sitting justices, seven served on federal appellate courts before their appointment, and none have held elected office. In the words of Yale Law School Professor Akhil Reed Amar, the “Judicialization of the Judiciary” is well under way.

Even the current crop of justices is more diverse than what the pending confirmation process—or unfortunate lack thereof—would likely produce. Justice Ginsburg, for example, worked as general counsel for the American Civil Liberties Union before her nomination to the Court of Appeals D.C. Circuit. In a speech at Southern Methodist University in 2011, Ginsburg said that her connection to the ACLU would likely disqualify her today. Still, the Senate overwhelmingly confirmed her by a 96-3 margin in 1993.

The lack of advocacy or political experience that the current nomination process prizes threatens to make the judicial class far too removed from the experiences of the political system—to say nothing of the wider society—that it seeks to check and balance. American legal history is filled with political figures who later became transformational justices. Earl Warren, the chief justice whose tenure saw seminal civil rights cases like Brown v. Board of Education and Gideon v. Wainwright, served as governor of California before his nomination by President Eisenhower. The associate justice who authored the decision in Gideon, Hugo Black, had previously been a United States Senator from Alabama. Given their political backgrounds, both of these towering eminences would likely face fierce opposition from today’s Senate.

While legal acumen and an unbiased disposition are rightly thought of as key qualifications for a seat on the Supreme Court, they are not the only requirements for nominees. Justices must be able to apply the law with an understanding for its real world consequences, and the Court itself must bring a diversity of experiences to bear as it decides cases. The current process risks valuing intellectual heft too much and varied professional experience too little. While this preference may result in less confrontational Senate hearings, it will also result in a Court less able to forge the legal advances that have kept the nation’s courts in step with ever-changing times.