President Barack Obama’s nomination Wednesday of Merrick Garland to the U.S. Supreme Court officially set in motion an election-year fight over the merits of filling the high court vacancy now versus after a new president is in office.
But as the latest in a lengthening list of Supreme Court nominees educated at either Harvard or Yale law schools, the selection of Judge Garland, an appeals court judge, rekindles another debate long heard within the legal community: Is the nation’s high court as educationally diverse as it should be?
There seems little doubt that those two Ivy League schools in particular hold a lock on membership. Of the eight sitting justices, all received law degrees from Harvard or Yale, except for Justice Ruth Bader Ginsburg, who graduated from Columbia Law School after earlier attending Harvard.
The late Justice Antonin Scalia, whose death last month created the vacancy on the nine-seat court, was Harvard Law, Class of 1960. For decades, nominees to the court have come largely from those two schools. Judge Garland is a Harvard Law graduate.
“It’s a very important question and I think it’s something that should be of concern,” said Gregory Bowman, dean of the West Virginia University College of Law.
“The United States is a vast and diverse place geographically and culturally, and when you pull your justices from just a few select schools in the same region of the country, then you are not getting a court that has a diverse set of experiences and backgrounds and ways of doing things,” he said.
The provision of legal services in America for the most part involves those outside the Ivy League, Mr. Bowman said. Yet the opposite is true of the justices who are America’s final arbiters of cases in which ”people’s lives hang in the balance.”
Ken Gormley, dean of Duquesne University’s law school and himself a Harvard Law graduate, agreed that many would find it surprising that yet another nomination is coming from one of those two schools. ”But in this case we need to look beyond that to the political situation the president faces,” he said.
“The exigencies of this situation call for a candidate with impeccable credibility who is also a centrist,” Mr. Gormley said. “We likely would have seen a different pick from the president if he didn’t need someone whose background and views didn’t leave any room for quibbling about his profile and qualifications.”
There’s another reason those schools are a pipeline, say some. Their brand and the connections their graduates enjoy can make a decision sure to face unrelenting scrutiny an easier sell to the Senate and public at large.
Gary Gildin, interim dean of Penn State Dickinson School of Law, said it depends on how one views the job of Supreme Court justice. If it’s simply as an objective interpreter, then what matters is getting “the best and brightest of interpreters of statutory language and other sources of interpretation of statutes, as well as reading case precedents.’’
But if the job is more, then it’s not simply about education or school but “the totality of life experiences” and “value sets” as well as other influences that can subconsciously enter a judge’s decision, he said.
It’s possible to overrate the influence of a justice’s educational background, said University of Pittsburgh law professor Arthur Hellman. “By the time somebody is appointed to the Supreme Court, he or she has had many other life experiences,” he said.
Just the same, Mr. Hellman added: “They [the justices] are not all that different from one another, and they all participated and spent most of their lives in a very narrow segment of the legal profession.”
Richard Friedman, professor of law at the University of Michigan, didn’t think that the educational background of Supreme Court justices is “that big of a deal.”
“The big difference is the individual,” he said. “I think what [graduating from a non-Ivy League school] would have done to them dwarfs in comparison to the personal differences.”
But Rebecca Zietlow, professor of law at the University of Toledo, argued that a court filled with Ivy League graduates creates a court without a certain breadth of knowledge.
In general, she said, a degree from an Ivy League school indicates “you were rich, you were always rich, and you don’t have the sense of how an average person lives.”
As an example of how narrow perspectives can affect the court, she pointed to the lack of involvement in politics by justices before they were named to the court. That insulation from politics or legislative positions has, in her perspective, created a court that is not particularly deferential to the political process.
“They are very willing to overturn things that the Congress has done,” she said, “and seem very dismissive of the judgment of the political branches.”
The Block News Alliance consists of the Pittsburgh Post-Gazette and The Blade of Toledo, Ohio.
First Published: March 17, 2016, 4:00 a.m.
