Why elites do belong on the Supreme Court
Judges should be able to understand and empathize with just about anyone, because the law is about everyone. With that in mind, is what's good for Harvard and Yale good for America?
If Elena Kagan is confirmed, we will have an entire Supreme Court educated at Harvard and Yale law schools, demonstrating again the grip that academic elites have on the levers of power. Some worry this homogeneity is too anti-democratic, even for our most anti-democratic of institutions. I don't hear a claim that even knuckleheads deserve a spot on the court, but surely some brilliant possibilities attended, say, Berkeley? Or Tulane?
In confirmation battles, populist cred is at war with elitist credentials. Our political culture values a common touch, but our legal culture values uncommon smarts. Supreme Court nominations are a shotgun marriage of the two, but it should not be a marriage of equals.
For a court nominee or a political candidate, there are communications strategies to finesse a blinding résumé. If you want to explain to the public why you support a nerdy nominee (embrace it, Elena), you may want to talk about her Average Jane swellness. A senator walks out with the newest pick and grins into the cameras saying: "This is a fine person. Very likable. Loves fishing." Translation: "Pretty darned smart, but she seems human (enough), so don't hate me if I decide to support her."
In September 1988, I was helping prepare Gov. Michael Dukakis for a presidential debate against Vice President George H.W. Bush. The late Bob Squier, a brilliant operative, coached: "Remember, in this debate, the voter is sitting at home watching the tube, trying to decide which one of these two characters they want in their living room every night for four years. They've got to like you." Everyone got the message: The brainiac doesn't win, niceness counts, eliteness alienates. (Dukakis, like me, attended Swarthmore College and Harvard Law School; Bush went to Yale.)
But legal culture is different. We're enforcing the Constitution and preserving fundamental rights, for goodness sake. Federal judges, unlike those in most states, are well insulated from politics because they are appointed for life and never face election. Though political concerns do intrude -- the people who nominate and confirm judges are politicians who worry about political consequences, after all -- we hope that's not the only thing the politicians think about.
At the Supreme Court level, it's all about finding oracles for Olympus. While it's frowned upon when judges fire spitballs at colleagues, what matters is intellectual horsepower, not office-chat charm. It is wisdom and analysis, not personal experiences. If a judge's life is elite in the sense of excellence, that's fine. In fact, that may be the point. At every turn the nominee has excelled in a meritocratic system, one that is selective yet far more open than in generations past. But if a judge is elite in an exclusive and exclusionary sense, then we have a problem that's both political and jurisprudential.
The tension between elitism and populism is embedded in our national DNA because America rejected the model of a monarch ruling by divine right in favor of an iffy experiment in democratic self-governance. So now you are responsible for choosing your leader. Do you want someone like you or someone better than you?
Easy answer if you're picking a piano teacher or a brain surgeon. But what about picking a Supreme Court justice who will decide whether corporations should be able to buy elections, whether late-term abortions can be prohibited, whether Congress can take a sledgehammer to state regulation of health insurers or whether local police can demand that people who look illegal (brownish?) produce identification papers?
Before taking my current position at Berkeley, I was a law professor at Harvard for 23 years (and voted to have Kagan, with whom I'd worked in the Clinton White House, join us). I firmly believe that the exclusionary nature of such elite institutions poses dangers. For a generation now, every highly selective university has been aware of this problem, however imperfect their responses.
The gatekeeper power of such institutions is why it was so important to desegregate them (using affirmative action, among other tools) and why virtually all leaders of great universities talk about diversity and access.
For about 40 years now, all the top law schools have tried to pick students who are not just brilliant but who have the potential to be outstanding leaders from and for all of America's communities. Today, "elite" doesn't carry the old-boy, classist, midcentury sense.