President Obama has nominated Elena Kagan, a graduate of Harvard Law School, for the United States Supreme Court. If the Senate confirms her, all of the Court's justices will have graduated from Harvard or its rival, Yale. Some commentators, and at least one U.S. senator, have questioned whether it is appropriate for every justice to come from such a narrow pool of candidates. In his May 16 Washington Post article, "Why Elites Do Belong on the Supreme Court," Christopher Edley, Jr., the dean of the School of Law at the University of California at Berkeley, says that it is.
It might seem surprising that Dean Edley is so willing to defend the Harvard/Yale Supreme Court monopoly. After all, Edley oversees one of America's great law schools, a proud and prestigious institution that turns out more than its share of great professors, judges, and practitioners. Do Berkeley graduates not merit attention, too? Does Edley believe that his school should continue to be excluded from the list of schools able to supply justices?
It's unlikely. But while Dean Edley raises this issue, he has no desire to answer it. He has another mission in mind: supporting the nomination of his friend, Elena Kagan. Edley's argument goes something like this: (1) we need really smart people like Elena Kagan on the Supreme Court; (2) the elite law schools supply really smart people; and (3) the elite law schools are sufficiently diverse that the American people should not be concerned that a small group of them supply all Supreme Court justices. Edley's argument is not persuasive.
Edley is undoubtedly right that Kagan is smart. Some recent nominees faced nagging questions about their intellectual firepower. Not Kagan. But Edley is unsuccessful at showing that intellectual firepower is the most important quality for a Supreme Court justice. In his words, "[at] the Supreme Court level, it's all about finding oracles for Olympus." Edley makes it sound as if Supreme Court judging is grounded more in faith than intellectual rigor.
Sadly, when it comes to the Court's constitutional jurisprudence, Edley's description is accurate. Rather than carefully analyzing the text of the Constitution, far too many judges divine the intent of the document as if they are channeling wisdom from the gods. The original text of the Constitution matters little when the document is living and growing in new and progressive directions. The document is living precisely so it can change with the times.
Edley concludes that because of the Court's role, it "is wisdom and analysis" that matters when "picking a Supreme Court justice who will decide whether corporations should be able to buy elections, whether late-term abortions can be prohibited, whether Congress can take a sledgehammer to state regulation of health insurers or whether local police can demand that people who look illegal (brownish?) produce identification papers[.]"
Maybe so. But when it comes to a question like "whether late-term abortions can be prohibited," the Constitution itself offers little or no textual guidance. Constitutional decisions in this area are based less on legal training (or even a high intelligence quotient) than they are the judge's own values, and high LSAT scores or degrees from fancy institutions are no indication of sound moral judgment. And since the "wisdom and analysis" Edley speaks of is little more than the justice's own subjective value judgments, and since the Court's decisions are binding and irreversible on the American people, is the public wrong to question whether the Court's members should all come from the same pool?
Edley tells us not to fear; elite law schools "pick students who are not just brilliant but who have the potential to be outstanding leaders from and for all of America's communities." Good news. Since elite law school admissions committees are the de facto gatekeepers for our future, unelected oracle-readers, we should be encouraged to hear that law school applicants satisfy some anonymous law professors' vision of good leadership. And Edley is not lying when he says these committees choose students to represent all of our diverse communities. Lest anyone doubt that commitment, Edley notes that his own elite institution contains a surprisingly diverse lot, including medievalists, underwear models, and high school dropouts. (The list is meant to comfort us.)
It is not clear what any of this has to do with Kagan, of course. She does not appear to be a medievalist, underwear model, or high school dropout, although we hope that her law school experience was enriched by one or all of the above. So Kagan's argument can apparently be distilled to the following: Kagan is smart.
But despite her intellectual firepower, Kagan is yet another Supreme Court nominee lacking one critical qualification: experience as a lawyer.
It might sound strange to criticize the dean of Harvard Law School as lacking legal experience. But it is possible to spend a lifetime in the hallways of elite law schools without suffering the misfortune of bumping into the actual practice of law. The elite law schools may be the training grounds for the nation's future lawyers, but they are staffed largely without using any lawyers at all. Law professors at those institutions tend to be smart academics who know little or nothing about what lawyers do.
Most law professors practiced for a year or two (if at all) before moving to the academy, where they write mostly obscure (and admittedly harmless) law review articles. This may come as a surprise to the general public. Such an odd system -- it is hard to imagine flight schools staffed by academics who write scholarly articles about lift and drag but have never set foot inside a cockpit. Yet future lawyers are in fact trained by people who are no more experienced at practicing law than they themselves are.
No matter. The American public has other, more pressing problems, at least as long as the damage is limited to the law students themselves. Caveat emptor. But when the Supreme Court is staffed by academics with little or no experience in the practice of law, the whole country suffers. While the oracles-from-Olympus constitutional opinions get the press, much of the Court's work is more mundane: parsing statutes and case law to provide guidance to lower courts. And when it comes to that task, experience in the legal trenches is as valuable as intellectual firepower.
Not knowing the life of a practicing lawyer, Supreme Court justices frequently churn out opinions that are not tethered to the real world, opinions that that could be the result of a brainstorming session in the Harvard faculty lounge rather than the work of seasoned practitioners. The rulings tend to have complexity and nuance, chock full of complicated, multi-factor balancing tests...and too often, they utterly fail to give lower courts, practicing lawyers, and clients the clarity and predictability the law needs.
Elena Kagan is by all accounts a brilliant thinker. But is she a lawyer? Based on her resume, she is arguably unqualified to take a deposition, plot case strategy, or, heaven forbid, try a case without help from an experienced practitioner. Yet Dean Edley would have us believe that Elena Kagan is the person to write the rules that govern all of those tasks. Some of us in the trenches are skeptical. Is it really too much to ask that Supreme Court justices know how to practice law before presuming to write the rules for those of us who do?
Chris Arledge is managing partner of One LLP, a Southern California-based intellectual property and entertainment law firm.