If Brett Kavanaugh is confirmed he will split the U.S. Supreme Court right down the middle.
A Yale lawyer, he’ll even the score. Four justices will be Yale-educated while four will have been churned out by Harvard Law School. The Notorious RBG went to Columbia Law School, but Ruth Bader Ginsburg was a Harvard undergrad, so I guess advantage Crimson.
As Kavanaugh’s confirmation hearings progressed, almost all of the press coverage has focused on how Kavanaugh might impact such hot button issues as reproductive rights and presidential powers . That’s understandable, but there has been virtually no attention paid to the narrow experiences of justices, which in the long-run could have more to say about the court’s influence than anything else.
Regardless of their ideological perspective, there is a shocking lack of diversity in education and experience among the justices. Almost all are essentially east coast elites. Only one justice, Neil Gorsuch, has ever spent a part of their lives west of the Mississippi. And University of Wisconsin political science professor Howard Schweber points out that this is the first court in history in which every member had been a judge and none has held elective office. He also says that the court hasn’t had a justice who had represented a criminal defendant since Thurgood Marshall, who died in 1991.
So, what if we had a Badger barrister on the court? Schweber notes that Wisconsin’s Law School is known for its “law in action” approach, which he says takes a sociological perspective and focuses on the actual operation and experience of the law. Harvard and Yale focus more on theory. In fact, the corporations and big law firms that hire Harvard and Yale lawyers assume they will have to do on-the-job training in the actual practice of law in the real world.
Schweber and others who study the court acknowledge that Yale and Harvard are hard to get into, that the professors are some of the best in the world, and that national and international politicians and other luminaries routinely traipse around these campuses, exposing students to powerful ideas and personalities. There’s no question that a degree from one these schools pretty much certifies intellectual prowess and exposure to the experience of power and insights at the highest level.
But Schweber counters that what is most important in a justice is judgment. Says Schweber, “Academic excellence, exposure to scholarship, and social connections — none of these has anything to do with the inculcation of judgment, and indeed may suggest a degree of ambition, insularity, and privilege that is discouraging on that score.”
Schweber’s colleague in the political science department, Ryan Owens, told me he believes that a diversity of life and legal experience are more important than what schools the justices attended. But he did provide me with this quote from the late Justice Antonin Scalia:
“The Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination....”
Okay, when I find myself echoing Antonin Scalia I probably need to take a time out and reflect long and hard. But I still think I have a point here.
While experts I talked with found it hard to predict exactly how a more diverse court would rule differently, they believed that a wider breadth of life experiences among the justices was key to the court’s credibility going forward. Both major parties are going through a populist moment and it’s hard not to imagine that at some point the backlash against elitism will turn to the high court that has so much to do with the rules that govern our lives.
Ironically, that hasn’t happened under Trump. His two picks so far have been standard issue conservatives who could have just as easily been nominated by Jeb Bush or Marco Rubio. And he’s shown elitist balance — Gorsuch went to Harvard while Kavanaugh graduated from Yale.
The Supreme Court has become a group of lawyers with virtually the same experience slightly more than half of whom come out of it ideologically conservative while the rest come out ideologically liberal. Maybe if they had different backgrounds — in terms of their legal education, their geography and their careers — they might see things differently and the hard ideological lines that have set in might be scrambled and loosened.
It seems likely that Kavanaugh will be confirmed. I hope that this will not only be Trump’s last chance to pick a justice, but that a new Democratic president will see fit to nominate justices with more diverse academic and life backgrounds. It wouldn’t be a bad idea to start with a Badger lawyer.
