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The Harvard-Yalification Of The Supreme Court

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The Harvard-Yalification Of The Supreme Court

The Harvard-Yalification Of The Supreme Court

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This is WEEKEND EDITION from NPR News. I'm Rebecca Roberts.

Senate Democrats are hoping for an early August vote to confirm President Barack Obama's new nominee to the Supreme Court. Coming up, we'll take a closer look at the high court confirmation process.

But first, if Elena Kagan is confirmed to a seat on the Supreme Court, it will lead to an Ivy League clean sweep. And not just any Ivy, every justice will have attended law school at either Harvard or Yale. Should a diploma from one of the nation's top two law schools be a prerequisite for a job on the court?

NPR's Larry Abramson reports.

LARRY ABRAMSON: The rise of the Harvard-Yale hegemony is not new in Washington. Each of the last four presidents passed through these two institutions. Elena Kagan would replace John Paul Stevens, who attended lowly Northwestern University Law School, only number 11 on U.S. News rankings. Harvard and Yale's half-nelson grip on entry to the high court is a little odd to some observers, especially those from different time zones.

Dan Farber teaches at the seventh-best law school, also known as Berkeley Law.

Professor DAN FARBER (Berkeley Law School): It does seem kind of weird, for example, that Stanford, which is, you know, ranked right up there with Harvard and Yale, doesn't have now any of that representation.

ABRAMSON: The idea that someone from Berkeley would complain about a slight against archrival Stanford shows just how surprised some Westerners are about their total shutout from the court. Stanford, ranked number three, sent both William Rehnquist and Sandra Day O'Connor to the high court.

Author Nicholas Lemann says the Harvard-Yalification of the court marks a resurgent elitism in American society.

Mr. NICHOLAS LEMANN (Author): It really represents an unstated but quite powerful consensus that there's a narrow channel through which you have to pass to be a Supreme Court justice.

ABRAMSON: Lemann says that the Kagan nomination points to a growing lack of diversity when it comes to background and experience. He says this cautious strategy dictates:

Mr. LEMANN: If they haven't done certain things by the time they're 25 or 30, game over.

ABRAMSON: Gone are the days, Lemann says, when experience in politics, as with former California Governor Earl Warren, was seen as a gateway to the court.

Others look at the Harvard-Yale nexus and say: So what? Professor Pamela Karlan of Stanford Law says your education resume just isn't that important in the final analysis.

Professor PAMELA KARLAN (Stanford Law): I don't think anybody is nominated for the Supreme Court because of what they did as a child.

ABRAMSON: Elena Kagan graduated from Harvard way back in 1986, although since then she's served as law school dean there from 2003 to 2009. So, her ties to that school are awfully strong. Still, Pam Karlan says, we shouldn't make too much of what is essentially a coincidence.

Prof. KARLAN: Graduates of elite universities do all sorts of things in their professional careers, just as graduates of not particularly selective law schools often go on to elite positions.

ABRAMSON: And, many observers say, the Harvard-Yale pedigree is just a safety net that helps preempt potential criticism of a nominee's bona fides. And the truth is, using top schools as a filter makes life simpler for busy presidents and for Supreme Court justices when they choose their clerks.

Justice Antonin Scalia, Harvard Class of 1960, admitted as much in an address last year when he said his favorite court clerk was Jeff Sutton, whom he inherited from Justice Lewis Powell.

Mr. ANTONIN SCALIA (Supreme Court Justice): Well, I wouldn't have hired Jeff Sutton, for God's sake, he went to Ohio State.

(Soundbite of laughter)

ABRAMSON: Scalia wasn't being ironic. He said he believed the best schools admit the best and the brightest.

The chief flaw with the Yale-Harvard test is that it leaves out people who couldn't get into those schools - which is to say, most of us.

In 1970, Senator Roman Hruska defended high court nominee G. Harrold Carswell against the charge that he was mediocre. Hruska said, there are a lot of mediocre judges and people and lawyers. They're entitled to a little representation, aren't they?

Apparently, they are not. Larry Abramson, NPR News.

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