If confirmed as a Supreme Court justice, Elena Kagan will bring greater diversity to the court by adding a third woman. What she will not bring is educational diversity. Her confirmation will leave the court entirely composed of former law students at either Harvard or Yale.
The decision of President Obama to select a nominee from one of these two schools is particularly disappointing as a replacement for Justice John Paul Stevens — an iconic figure on the court who was also its only graduate from an alternative institution (Northwestern). Kagan will join fellow Harvard graduates Chief Justice John G. Roberts Jr. and Associate Justices Antonin Scalia, Stephen G. Breyer and Anthony M. Kennedy. This leaves three justices from Yale (Clarence Thomas, Samuel A. Alito Jr. and Sonia Sotomayor). Associate Justice Ruth Bader Ginsburg also attended Harvard but graduated from Columbia.
Why should we care? When you virtually exclude all but two of the nation's 160 law schools as sources for justices, it not only reduces the number of outstanding candidates but guarantees a certain insularity in training and influences on the court. This bias is not only elitist but decidedly anti-intellectual. Moreover, there is no objective basis for favoring these two schools. Annual rankings from law schools on publication or reputation or student scores show relatively small differences in the top 20 law schools. The actual scores of the small pool of students in the top tier vary by only a few points. While Harvard and Yale are routinely ranked in the top spots, the faculties and student bodies are not viewed as manifestly superior to such competitors as Stanford, Chicago, Michigan or other top schools.
If Obama had looked more broadly at outstanding graduates from other schools, he might have found someone with more professional experience, a more extensive writing record or some actual experience in the judiciary. What Kagan had was a Harvard connection and one of the most powerful legal cartels behind her. When challenged on this obvious bias in favor of two schools, leaders usually insist that it is just coincidence. Ironically, the federal government has long rejected the claims of businesses that insist their failure to hire from certain groups, such as women or minorities, is unintentional.
He didn't even mention the lack of hair style diversity.
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