The justice league: Elena Kagan's nomination shows that Ivy roots run deep

By Sarah Kaufman and Dan Zak
Washington Post Staff Writer
Wednesday, May 12, 2010; C01

Ivy has twirled itself around the marble columns of the Supreme Court like some smarty-pants weed. Over the past 25 years, it has crept into the chamber and entwined every justice's chair except that of John Paul Stevens. But if Solicitor General and former Harvard Law School dean Elena Kagan is confirmed by the Senate to replace him, the Ivy League's grip on the court will be complete: Every sitting justice will have attended either Yale or Harvard law schools.

Lady Justice: Your toga is stained crimson and littered with skulls and bones!

So much for public education, and boohoo for those of us who were rejected from, say, Columbia or, um, didn't even bother to apply to an Ivy because we have low self-esteem.

Granted, Ruth Bader Ginsburg got her JD from Columbia University, but only after she transferred from Harvard Law School (where she was president of her class) after two years. About half of the justices throughout history attended an Ivy League school. In the past 50 years, 64 percent of justices (18 out of 28) were educated at an Ivy. If Kagan is confirmed, the trend might as well become law.

The luster of an Ivy League degree became paramount after Ronald Reagan's failed 1987 nomination of Robert Bork, who was assailed for his outspoken right-leaning views on abortion, affirmative action and civil rights, according to Timothy P. O'Neill, a professor at the John Marshall Law School in Chicago. An Ivy League diploma, O'Neill says, has become shorthand for: This person is objective and scientific and will come to the single best decision unswayed by personal bias.

"The Harvard and Yale pedigree became a way to defuse the ideological split," he says. "We know how powerful the court is -- now we have to pretend it exists above ideology. We have to get nine vestal virgins from Harvard or Yale. Brains trump ideology."

In the current climate, diversity of one kind (gender, racial or ethnic) seems to outweigh diversity of another (economic, geographic or experience outside the law). Gone are the days when a Supreme Court justice could be plucked from outside the East Coast, Ivy-centric ranks. In the '20s and '30s, Warren E. Burger combined a day job at an insurance agency with night school at the St. Paul College of Law in Minnesota and went on to become chief justice. Sandra Day O'Connor was born, raised and educated west of the Mississippi. She grew up on an Arizona cattle ranch without electricity or running water, graduated from Stanford Law School and became the first female justice in 1981.

Lately, though, the lack of an Ivy League diploma can be seen as a deficiency. Former White House counsel Harriet Miers, who was nominated in 2005 by President George W. Bush, received her law degree from Southern Methodist University. In the uproar that compelled Bush to withdraw her nomination, there was a whiff of disdain for her credentials.

"The Supreme Court is an elite institution," wrote Washington Post columnist Charles Krauthammer (a Harvard alumnus), calling for her withdrawal. "It is not one of the 'popular' branches of government."

The Ivy League's influence on the court has not been studied, but it has become a key part of a nominee's marketability, according to Lee Epstein, a professor at Northwestern University School of Law.

"We forget this because we talk about ideology all the time, but perception of qualifications matters so much," she says. "The public really thinks about 'Is this person qualified to be on the Supreme Court?' -- and that filters into the Senate's consideration. . . . I've heard it said that when somebody goes to Harvard Law School, when someone's the dean of Harvard Law School, it's like one hurdle overcome."

But are these super-pedigreed candidates missing something?

"Harvard and Yale are, by any standard, great educational institutions, but it is not one of their strengths to instill in their students a sense of humility," says Jerome Karabel, a sociology professor and author of "The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale, and Princeton." "And if humility is a desirable quality in justices, then Harvard and Yale should not be the only pathway to the Supreme Court. Some of our greatest justices -- Earl Warren, Thurgood Marshall, Robert Jackson and Hugo Black come to mind -- did not attend Harvard or Yale."

In "The Supreme Court: Who Are the Great Justices and What Criteria Did They Meet?," a 1990 rating of justices by scholars, judges and lawyers, six of the top 10 were Ivy Leaguers. The justice with the most nods for "great," though, was John Marshall, whose formal legal training consisted of a few lectures at William and Mary in 1780, a couple of decades before he became the court's fourth chief justice.

These days, going with a known stamp of quality is a safer choice, says Niels B. Schaumann, vice dean of faculty at the William Mitchell College of Law, formerly the St. Paul College of Law, Burger's alma mater.

"What we're seeing is an abundance of caution," Schaumann says. "You can't argue with Harvard. Harvard is a great law school, and someone who was the dean of Harvard Law School would be a great candidate for the court. . . . I think an Ivy League degree -- which I don't own; I graduated from Fordham -- is often seen as the single most important thing in a person's background rather than an indicator of the quality of work the person can do. [But] I think with the highly politically polarized state of the nation, that kind of condition doesn't reward taking chances with nominees."

If President Obama gets to name a third justice and wishes to weed out the ivy, Burger's school in St. Paul is prepared.

"We are ready to send our best and brightest to the Supreme Court anytime President Obama asks," Schaumann says.

Does he expect Obama to call on the Minnesota school?

Schaumann chuckles.

"I don't," he says. "I'm a realist."

© 2010 The Washington Post Company