Why Obama Shouldn't NOT Pick an Ivy League Justice

Finally, Democrats and Republicans agree on something. Too bad it's not something worth agreeing on.

In Washington, D.C., a bipartisan consensus seems to be forming around the idea that President Obama should choose a judge without an Ivy League education to replace John Paul Stevens. Last Sunday, Bill Kristol--who went to Harvard (both undergrad and grad), married a fellow Harvard alum, and sent his son to Harvard--urged the president via FOX News to select a non-Ivyite for the post, saying that "it would be good to have a nominee that stood up against powerfulinterests like the elite law schools, which... have done a lot of damage."

Meanwhile, the Washington Post reported a few days later that "many" Senate Democrats have a "particular preference" for "a nominee who comes from outside the usual background of Ivy League law schools." As Chuck Schumer--Harvard College, Harvard Law--put it, "I've always liked someone with practical experience."

Now, I'm all for a little judicial populism, and I agree that the Supreme Court needs diversity--diversity of upbringing, diversity of gender, diversity of resume--to thrive. One of Stevens's greatest assets as a justice was a kind of real-world connectedness that led him, time and again, to side with the little guys over the powerful interests. In contrast, too many of the current justices rose through the "judicial monastery" (federal courts, academia) without gaining perspective, like Stevens, as a practicing lawyer.

But someone needs to defend the poor Ivy League here, and, at the risk of inciting a anti-snob riot the comments section, it might as well be someone who went to school near Trenton. Here's the thing: I'm not sure it makes a lot of sense to equate a few years of school at Harvard or Yale with being irrevocably elite, "ethereal" (Schumer's word), or even particularly similar to other Ivy alums. Going to an Ivy League law school shouldn't necessarily be a plus. But it also shouldn't be a minus. The fact is, Ivy League admission usually--not always, but usually--reflects what you've accomplished rather than who you are. Yes, many people can't afford tuition. Others gain admission mostly because their parents went there. It's not a total meritocracy. But overall, there is some correlation between attending an Ivy League school and being smart, hard-working, focused, etc. Of course, this doesn't mean that graduates of other schools can't be smarter, harder-working, and more focused than Ivy Leaguers, or that Ivy Leaguers can't be dumb, lazy, and scatterbrained themselves. It just means that to rule out a candidate for an intellectual position solely because he or she is an Ivy Leaguer seems likely to be counterproductive.

In selecting a Supreme Court justice, the important thing isn't figuring out where she went to school--it's figuring where she came from before she went to school, and what she did after. Democrats presumably object to Ivy League justices because they believe Ivy Leaguers aren't connected to the real people their rulings will affect. As Schumer put it, "they miss the practical." But if all Yalies were such out-of-touch elitists, why would 80 percent of them be on financial aid (compared to 50 percent at Stevens's alma mater, Northwestern)? Sonia Sotomayor went to New Haven for law school (and Princeton for undergrad). But she was also raised by a single mother in a drug- and crime-ridden Bronx housing project. I'd argue that the latter has more to do with her perspective than the former. A similar principle applies to Stevens. It wasn't his non-Ivy background that made him such a "practical" justice. After all, his father was a wealthy hotelier, and Northwestern is a Top 10 law school. It was his two-plus decades as a practicing attorney in Chicago.

Conservatives like Kristol, meanwhile, like to knock Ivy League justices because they're inclined to think of Ivy League schools as oppressively liberal places that invariably transform all of their students into wild-eyed progressive activists. There's a grain of truth in this charge: Harvard and Yale Law do lean leftward, and their students are probably more Democratic than Republican. But it's hardly true across the board. If it were, Justices John Roberts (Harvard, Harvard Law), Samuel Alito (Princeton, Yale Law), Antonin Scalia (Harvard Law), and Clarence Thomas (Yale Law) would all be liberals. In other words, ruling out Ivy Leaguers doesn't mean you're only ruling out the next Earl Warren (who, incidentally, went to UC-Berkeley). It means you're ruling out some pretty smart conservatives as well.

Ultimately, I understand why both Democrats and Republicans are jumping on the anti-Ivy bandwagon; populism plays well in times of economic trouble, and pointy-headed East Coast elites always make attractive punching bags. But at the end of the day, law school has far less to do with who someone is--and how they'll decide cases--than where they came from and what they've done with their career. Despite all the chatter on both sides of the aisle, I think Obama probably understands this. He spent the years before he arrived at Harvard Law living with his single mom and working-class grandparents and, later, working as a community organizer on the South Side of Chicago; he spent the years after graduation serving as a civil-rights attorney. My guess is that if he were asked which part of his biography has most informed his presidency, he wouldn't pick Harvard. So it's silly to expect him to suddenly strike all the Ivy Leaguers from his shortlist--as bipartisan as it might be.