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Why elites do belong on the Supreme Court

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In fact, law schools strive for an elitism that is quite democratic in comparison with many other fields. As at Yale and Harvard, we at Berkeley seek to build a campus community that is as exciting and diverse as our nation. That means a New Jersey physics major who models underwear. A single-parent firefighter medievalist from Denver. A former Navy Seal, a software designer, a late-blooming high school dropout, a dancer with published poetry. And when they are here, they teach each other, they learn to understand each other, and then they remember each other.

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I write this just hours after our law school graduation ceremony. Elite? You bet. These graduates are exactly what our toughest problems demand. But beyond the paper credentials and the academic pedigree, they are more diverse in aspirations and passions than can be imagined.

We should prefer institutions that are elite in terms of excellence, while more democratic in terms of access. Even Harvard, Yale and their ilk are more open than they were a generation ago. This is for a lot of reasons, among them the rise of standardized testing, however imperfect, intended to reduce cronyism, the civil rights and women's rights movements, and the modern system of need-based financial aid.

My wife grew up picking crops in an immigrant farmworker family and wound up at Stanford, Berkeley Law and the Clinton White House. That's a powerful defense for elite meritocracy, if it's done the right way.

In my experience, there aren't too many "false positives," i.e., not-so-good people mistakenly admitted to elite settings such as Harvard, Berkeley or Supreme Court clerkships. On the other hand, there are plenty of equally terrific people who don't get a privileged spot in these institutions, for reasons that have nothing to do with meaningful differences in talent. But those "false negatives" (good people denied entry) aren't nearly as troubling as the false-positive mistakes in admissions or hiring. Again, think of your neurosurgeon or airplane pilot.

How many Army majors could be excellent generals? More than actually make it. But in my experience, one of the benefits of the excruciatingly rigorous meritocratic personnel system of the armed forces is that it is a rare admiral or general whom one could fairly consider a dunce. Being a "man of the people," accomplished swiller of beer, just doesn't count for much when executing our national security mission.

Obama's handlers use sports to humanize a brilliant man. But when he is pressing Afghan President Hamid Karzai about corruption or drug companies about health care, we are thankful for his intellect, not his jump shot. True, as a political leader he then has to sell his efforts to the electorate, and for that his niceness still matters.

When the president announced his Supreme Court pick last week, he noted that Kagan has an understanding of the law as it affects "the lives of ordinary people." Not everyone is convinced she's one of those ordinary people.

Sen. John Cornyn (Tex.), a Republican on the Judiciary Committee, noted that Obama had chosen "another person from an elite law school here on the East Coast, and there are a lot of law schools, a lot of highly qualified people around the country in the heartland that should have been given consideration."

This nagging question -- of how well this brilliant legal mind can represent the "heartland" -- is one that won't go away. We know that Kagan has excelled in the legal field. That ought to be enough. But just to be safe, she must explain what beer she drinks while slugging softballs. (To center field, of course.)

Christopher Edley Jr. is dean of the School of Law at the University of California at Berkeley.


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