No more Ivy-Leaguers, please

The Supreme Court lacks diversity, but not in the ways you think

August 04, 2010|By Theo Lippman Jr.

The Senate is expected to confirm this week — possibly as early as today — Elena Kagan to be a Supreme Court justice. I hope that's wrong.

I am opposed to her nomination because she graduated from an Ivy League law school. What's wrong with that, you ask? The answer: All nine members would be "Ivies" if she gets on the bench. A second wrong would be that now, all members of the court would have never been elected to a government position.

Contrast those circumstances to facts about the Supreme Court's justices of the last half of the 1950s. That court's best-known ruling, its 1954 decision in Brown v. Board of Education — ending legal segregation in schools — was, one legal scholar wrote last year, "probably the most significant decision rendered by the Supreme Court in the 20th century." I would drop "probably" and "20th century."

The makeup of the court in the spring of 1954 was quite different from any before or since. Six of those justices graduated from public law schools. Chief Justice Earl Warren was a University of California man. Justice Hugo Black went to the University of Alabama law school. Tom Clark went to University of Texas, and Robert Jackson went to Albany Law School in New York. Sherman Minton went to a public law school now called the Indiana Law School.

The "Ivies" of the Warren Court were William Douglas (Columbia Law School, then professor at Columbia Law and Yale Law School); Felix Frankfurter (student and professor at Yale Law School) and Harold Burton (graduated from Harvard Law School).

The ninth justice in 1954 was Stanley Reed. He attended the University of Virginia Law School and Harvard Law School, but he did not graduate from either. He is the only justice in modern times without a law school diploma.

Now, the real strength of the court is not just the justices' education, but also the real-world experience they bring to the court. Justices who have had to write laws while dealing face-to-face with other legislators will be better than scholars at reaching compromises. Five of the Warren Court justices were politicians who were elected to public office. Warren was elected the governor of California. Black was elected to the U.S. Senate from Alabama. Burton was elected mayor of Cleveland and to the House of Representatives and the Senate. Reed was elected to the Kentucky legislature. Minton was an Indiana senator in Washington.

If, despite the predictions, Elena Kagan doesn't make it — or if President Barack Obama gets the chance to make another appointment to the Supreme Court — Mr. Obama ought to find a public law school graduate who was voted into a public office.

He could do worse than to look to Maryland for candidates. Our state has a number of fine alumni of the University of Maryland School of Law — among them, U.S. Rep. Elijah Cumming, House Majority Leader Steny Hoyer and Gov. Martin O'Malley.

Theo Lippman Jr. covered the Supreme Court for the Atlanta Constitution in the 1960s, and he wrote many editorials about the court during his years at The Sun. His e-mail is theolippman@aol.com.

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