May 11th, 2010

Diversity on the Supreme Court: well, there’s Harvard and Yale…

and then there’s Yale and Harvard.

David Bernstein at Volokh wonders whether this Harvard-Yale thingee isn’t a bit much:

The president went to Harvard, and barely defeated a primary opponent who went to Yale. His predecessor went to Yale and Harvard, and defeated opponents who went to Yale and Harvard, and Harvard, respectively. The previous two presidents also went to Yale, with Bush I defeating another Harvard grad for the presidency. And once Elena Kagan gets confirmed, every Supreme Court Justice will have attended Harvard or Yale law schools.

Harvard and Yale do attract a great many good students. But they also help to create and then perpetuate a certain perspective, do they not? Don’t we want diversity? Let’s hear it for diversity!

And those on the left who think Elena Kagan isn’t liberal enough might be comforted that, at least back in 1980 as an about-to-be Princeton grad, she sure was. Here’s an excerpt from a letter to the editor she wrote in 1980, after Ronald Reagan’s election (neither a Harvard nor a Yale man be he):

Looking back on last Tuesday, I can see that our gut response — our emotion-packed conclusion that the world had gone mad, that liberalism was dead and that there was no longer any place for the ideals we held or the beliefs we espoused — was a false one. In my more rational moments, I can now argue that the next few years will be marked by American disillusionment with conservative programs and solutions, and that a new, revitalized, perhaps more leftist left will once again come to the fore. I can say in these moments that one election year does not the death of liberalism make and that 1980 might even help the liberal camp by forcing it to come to grips with the need for organization and unity. But somehow, one week after the election, these comforting thoughts do not last long. Self-pity still sneaks up, and I wonder how all this could possibly have happened and where on earth I’ll be able to get a job next year.

We know that Kagan’s job search ultimately went rather well, although not right away (after writing the letter, she attended Oxford and then Harvard Law). And of course we should not all be judged by sentiments expressed when we were seniors in college. But since Kagan hasn’t said much about her politics in recent years, there’s been little to redress the picture presented by this missive.

As far as Kagan’s legal writing output goes, Eugene Volokh notes that, although Kagan’s production of articles as a legal scholar was somewhat light when she was a law professor, it was within the acceptable range, and in his opinion its quality was quite high. And he’s actually read it, unlike the rest of us.

[NOTE: If you’re especially interested in learning more about Kagan, there’s a lot more information in many posts at Volokh.]

22 Responses to “Diversity on the Supreme Court: well, there’s Harvard and Yale…”

  1. T Says:

    It is my understanding that with Kagan’s appointment all of the justices will also be either Jewish or Catholic.

  2. Perfected democrat Says:

    Apparently a conspiracy of some kind? A muslim on the court should solve that problem…

  3. T Says:

    Undoubtedly coincidence, not conspiracy, but why should concerns about diversity be exclusive to one’s alma mater? When 9 out of nine justices, a small group to begin with, are drawn from only two universities and two religious sects (no offense intended, but I do distinguish Catholic from Protestant Christian) is there not the danger of the court losing its perspicacity?

    In a related mater, Ilya Somin (over at Volokh Conspiracy) believes that Kagan was a better manager (dean) than scholar; he doesn’t see that as a problem. I do. Should we not want scholars on the Supreme Court? After all legal decisions have more to do with a mind well versed in the discipline than excellence as a manager.

  4. JuliB Says:

    T – Not all of the SC judges are orthodox Catholics, but rather are cafeteria Catholics. They pick and choose what they believe in the theology.

    I’m a devout and orthodox Catholic, but I could understand your concern IF they were orthodox (faithful to the tenets) followers of Catholicism! But otherwise, the cafeteria ones are most likely no different than mainstream American in terms of being informed by one’s religious convictions.

    To me – it’s the same with the Jewish members – it would concern me if they were all devout Orthodox, but otherwise…

  5. Mr. Frank Says:

    If Kagen is approved, all three women on the court will have grown up in the NY city area. That’s not encouraging.

  6. Richard Cook Says:


    What do you base your opinion on? About Cafeteria Catholics. Including Scalia?

  7. Richard Aubrey Says:

    Mr. Frank,
    I agree. Among other things, a substantial number of New Yorkers seem to think that crosshair is a fashion accessory.

  8. Perfected democrat Says:

    “To me – it’s the same with the Jewish members – it would concern me if they were all devout Orthodox, but otherwise…”

    I would have more confidence if they were all devout Orthodox, then they wouldn’t (necessarily) be dedicated left-wing idealogues. At least the three women aren’t all from Chicago …

  9. T Says:

    I think the cafeteria Catholic comment (JulieB abvoe) might be a reasonable distinction– it could make the Catholic justices more like a Protestant in their outlook.

    Three of the nine from the New York area? I love NYC, but . . .

  10. PA Cat Says:

    all three women on the court will have grown up in the NY city area. Maybe at least one of them is a Mets fan rather than a fan of the Evil Empire. Who knows, one of them might have even developed a taste for Fenway Nation while in Cambridge.

  11. Assistant Village Idiot Says:

    People have missed her last quoted line here, “…where on earth I’ll be able to get a job next year.” This attitude is key to understanding leftists, for all their talk about compassion and helping others. Their compassion-talking tribe is supposed to rule, so that they have the most important jobs. When some other tribe acquires more influence, they perceive it as a threat to the entire society and our whole system. They let this ugly fact slip continually. Call them on it and they assume you must be against education and intelligence in general – likely because of your envy and resentment.

    As to religion, I tend to be quite satisfied when it is noted that a justice is “observant” in their faith. Orthodoxy matters less to me than the simple sacrifice of worship (many of us may hope that God feels the same way). Thomas, Roberts, Scalia, and Alito seem to be observant. Sotomayor, Ginsburg, Breyer, and Stevens appear not to be. I can’t find the info on Kennedy.

    Are you noticing a pattern here?

  12. Geoffrey Britain Says:

    Anyone whose reaction to Reagan’s election was one of, “I can see that our gut response — our emotion-packed conclusion that the world had gone mad, that liberalism was dead and that there was no longer any place for the ideals we held or the beliefs we espoused” essentially a reaction of semi-depression is a liberal/leftist.

    It’s worth noting that Carter had proved himself to be an incompetent. So, Kagan preferred the continuation of incompetence over the election of a conservative. That is not the position of a ‘moderate’.

  13. MDL Says:

    Geoffrey Britain
    I see in a previous post you mention Kagan has ‘no experience’ and then hint that conservatives would never do such a thing as nominate someone with no experience.

    You should note that Kagan has more experience than William Rehnquist.


    1952-1953: Clerk For Justice Robert Jackson
    1953-1969: Private Practice in Phoenix, AZ
    1969-1971: Assistant USAG, Office of Legal Counsel


    1986-87: Clerk for Judge Abner Mikva, U.S. Court of Appeals, D.C. Circuit
    1987-88: Clerk for Justice Thurgood Marshall, U.S. Supreme Court
    1989-91: Associate in Private Practice, Williams & Connolly
    1991-97: Assistant Professor and Professor, University of Chicago Law School (1991-94 as assistant professor)
    1995-96: Associate White House Counsel
    1997-99: Deputy Assistant to the President, Domestic Policy Council
    1999-01: Visiting Professor, Harvard Law School
    2001-03: Professor, Harvard Law School
    2003-09: Dean of Harvard Law School
    2009-10: Solicitor General of the United States

    The real issue with Kagan is that she is an unknown. Since I am a ‘liberal’ I feel she may not be left enough. If at all. It would be nice to have a liberal on the court who is far left as Scalia, Thomas, Alito and Roberts are to the right. Or heck, someone as far left as the Warren Court, which was a generation ago!

  14. Artfldgr Says:

    Harvard Law has fallen into the hands of intellectual Fascists. Free enquiry is dead

    Their feminist dean has all the respect for facts and logic that one expects from a committed feminist


  15. Assistant Village Idiot Says:

    MDL – one may value what one wishes, but academic experience and administrative experience are not universally regarded at SCOTUS qualifications. Rehnquist’s private practice is more of a wild card. Kagan has little published. This is not only a problem for puzzling out what she thinks, it’s a problem that there are no opinions to judge from.

    She has better credentials that Miers and Sotomayor, I’ll grant.

    As to the characterization of the conservative justices as being far to the right, that depends entirely on where one draws the center line. I find that liberals tend to do that on the basis of their impressions rather than on hard data or philosophical argument.

  16. Tom Says:

    Kagan went from Assistant Prof at UChi to Dean of HLS in 9, count ’em, nine, years: 1994 to 2003. That is pretty doggone meteoric. Based on what personal attributes, what academic or other productivity (save the HLS fund drive, initiated before her Deanship, which was so successful precisely because of the boom years in which it ran)? And exactly now able has she been as Solicitor General?

    Kindly explain that objectively, MDL. An explanation consisting of how very much she must have impressed the academic elites will not suffice for objectivity.

  17. Alex Bensky Says:

    Whatever other qualms about Kagan, I personally wouldn’t want to be held now for anything I may have said, done,or thought as an undergraduate.

    But the law school issue does remind us, as if anyone reading this blog needed reminding, that leftist concern for diversity is only for different looking people thinking the same.

    I can see, perhaps, why we may not have any justices from, say, the University of Idaho (Sarah Palin’s alma mater so all goodthinkers know the school can’t be any good). But graduates of the University of Chicago, Cal, or dare I mention the University of Michigan that in a weak moment gave me a law degree? Only two law schools produce people fit to be justices?

    And since some people claim they prize diversity, how about someone who is, perhaps, an evangelical Protestant. We have a lot of them; don’t they deserve representation. Further, since disparate numbers are taken as discrimination ipso facto, less than three percent of the US population is Jewish but the number of justices who are Jewish far exceeds that. Do Protestants have a discrimination claim?

  18. JuliB Says:

    I would definitely put Scalia in the ‘orthodox’ camp. His son is a very ‘orthodox’ Catholic priest. He had an article last year in a mag put out by a org that is very faithful to the Pope.

    Observant? Well, that helps, but many cafeteria Catholics are observant. By orthodox I mean one that accepts the 5 non-negotiables: 1. abortion is not allowed, 2. euthanasia is not allowed, 3. fetal stem cell research is not allowed, 4. human cloning is not allowed, 5. homosexual marriage is not allowed.

    Disagree with the above tenets of ‘orthodox’ Catholicism, and you are cafeteria. We have a LOT of area in the Church where a variety of positions and opinions may be held, but not in the areas above. Scalia I would be pretty sure is orthodox. Thomas is a convert, and we knowledgeable converts are an orthodox group, so I would be pretty sure that he is one too. The others – I don’t know, but people who fully accept the teachings of the Church are certainly not a majority of those who call themselves Catholic.

    I can probably count on one hand those I know that accept the authority of the Church in these matters.

    Given that, I would suggest that others on the Court will vote as a Protestant/non-aligned Christian would. Which is to say, you can’t really predict it.

  19. Occam's Beard Says:


    1952-1953: Clerk For Justice Robert Jackson, U.S. Supreme Court and head prosecutor at Nuremburg
    1953-1969: Private Practice in Phoenix, AZ
    1969-1971: Assistant USAG, Office of Legal Counsel
    1953-1954: Private Practice in Phoenix, AZ
    1954-1955: Private Practice in Phoenix, AZ
    1955-1956: Private Practice in Phoenix, AZ
    1956-1957: Private Practice in Phoenix, AZ
    1957-1958: Private Practice in Phoenix, AZ
    1958-1959: Private Practice in Phoenix, AZ
    1959-1960: Private Practice in Phoenix, AZ
    1960-1961: Private Practice in Phoenix, AZ
    1961-1962: Private Practice in Phoenix, AZ
    1962-1963: Private Practice in Phoenix, AZ
    1963-1964: Private Practice in Phoenix, AZ
    1964-1965: Private Practice in Phoenix, AZ
    1965-1966: Private Practice in Phoenix, AZ
    1966-1967: Private Practice in Phoenix, AZ
    1967-1968: Private Practice in Phoenix, AZ
    1968-1969: Private Practice in Phoenix, AZ
    1969-1971: Assistant USAG, Office of Legal Counsel


    1986-88: Clerk for various judges
    1989-91: Associate in Private Practice
    1991-97: non-practicing academic with minimal publication record
    1995-99: various government positions
    1999-03: non-practicing academic with minimal publication record at Harvard
    2003-09: administrator at Harvard
    2009-10: Solicitor General of the United States

    Gee, this straw man stuff is fun!

  20. You Can Have Your Rulers in Any Color. So Long As They Went to Harvard or Yale Says:

    […] can’t be said of today’s Two-​​Schools-​​Fits-​​All […]

  21. Tom Says:

    For MDL, “more” titles = “more” experience.

  22. Assistant Village Idiot Says:

    JuliB, we would clearly have a lot of agreement, and I have no doubt this conversation with you would be both entertaining and edifying. I agree about cafeteria Catholics – or cafeteria anythings, actually.

    I was thinking of a set of exceptions I know personally. As I work in an involuntary psychiatric facility, we have a fair bit of interaction with lawyers, and more with psychologists – who I think are drawn from a similar pool socially and intellectually. Few of the attorneys or psychologists are observant of any faith (though most people of my generation were raised with at least the husks of something, so they have some knowledge). The minority who are observant show some surprises in their area of practice. They seem indeed to be cafeteria style as regards their faith as a whole – but for the central ethical issues of their profession, they are more orthodox in their faith. I hypothesize that these are the areas that are always on their minds, so encountering challenges from their faith at weekly worship causes them to actually think things through, rather than just accept the standard beliefs of their secular peer group.

    Of course, the greater rationalisers also come out of that group, which causes damage. But I think observance slowly creates something closer to orthodoxy, however eccentricly it may be displayed – though only in the areas that people actually do the thoughtful work.

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