In May, 1970 President Richard Nixon nominated G. Harrold Carswell, then sitting on the Fifth Circuit Court of Appeals, to fill a vacancy on the U.S. Supreme Court created when Abe Fortas resigned under fire. Carswell's record on the District Court (the trial level court) on which he sat before the appellate court was pretty shabby -- including a monstrous reversal rate of nearly 58%, not to mention a disturbing civil rights record and opposition to feminist issues. One wonders, actually, how he made it to the Fifth Circuit bench. In any event, when defending Carswell against claims of "mediocrity," U.S. Senator Roman Hruska, a Nebraska Republican, famously said: "Even if he [Carswell] were mediocre, there are a lot of mediocre people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Frankfurters, and Cardozos."
Pretty much everyone was offended by Hruska's insulting comment, and it was recognized for its colossal stupidity. Fortunately, Carswell's nomination was rejected by the Senate and, parenthetically, Harry Blackmun, Nixon's replacement appointee, was confirmed -- although anti-abortion proponents would ultimately come to loathe Blackmun (a Harvard alum) for his majority (pro-choice) decision in Roe v. Wade.
But let's look at the issue raised by Hruska. Yes, we want our judges to be representative -- meaning, we want women and minorities, rich and poor, Republicans and Democrats to be fairly represented on the courts, Supreme Court and lower. But "mediocrity"? Is that what Ian Millhiser, who wrote an Op Ed in The New York Times on March 20th following Judge Merrick Garland's nomination by the President, was talking about when he wrote "[a]lthough the apparent consensus that Supreme Court justices must have gone to Harvard or Yale is a relatively recent development, there's always been a strong thread of elitism running though the legal profession's highest reaches." Millhiser goes further: "... elite credentials cannot teach a judge what it means to seek shelter in the law, or how it feels to be a victim of discrimination." Putting aside whether I agree with Millhiser's statement (as I surely believe certain Justices, and lower court judges, sitting today have been the victims of discrimination in their lives), is Millhiser saying that a less gifted intellect, who attended a lesser school, who has a less extensive record of achievements, is a more worthwhile candidate for the Supreme Court?
Yes, there seems to be nowadays, a dire concern that every justice currently sitting on the Supreme Court (including Judge Garland if he is confirmed) attended either Harvard or Yale Law School (asterisk for Justice Ginsburg who transferred to Columbia from which she finally was graduated). Millhiser -- in his "King v. Burwell Explained in 3 Minutes "-- certainly makes the point no less than twice in his discussion of Obamacare. Almost as if we hear Senator Hruska crying out from his grave -- "Who's going to ably represent the mediocre?"
Taking Hruska and Millhiser to their (il)logical extremes, how far do we go to make sure all of the people are represented by our justices? Do we really want our judges and justices to be more fairly representative of our society based on characteristics such as intelligence? I mean, do those who, for whatever reason, have no more than an eighth grade education deserve a justice on the Supreme Court who attended a law school advertised on the back of a match book? Or one who barely got through law school because he might better understand the plight of a litigant? Just how far do we go? Do we want a member of an extremist group so that they can better understand an "unorganized militia"? Perhaps we want justices who have been incarcerated so that they can better appreciate the serious problems in the prison system and empathize with inmates? Yes, the "e-word": President Obama got into hotter-than-hot water when he used the term "empathy" to describe Justice Sotomayor as one who could see life through the eyes of those who come before the courts; the conservative right concluded the word meant "activist," so that an empathetic judge would not apply the rule of law.
Yes, it's true, each of the current Supreme Court justices are overachievers. And they all attended the elite of the elite schools. But Justice Sotomayor, the first Hispanic, got there through the South Bronx, and Justice Ginsburg worked for the ACLU and represented feminist causes way before its time. And putting Millhiser's statements about a lack of understanding of discrimination to its proof, Justice Thomas, the second African-American Supreme Court justice, got to Yale through affirmative action, a program he now curiously disdains.
Now, it is true, indeed, that if you're a criminal defendant whose case has come to court, you probably -- rightly or wrongly -- will want to appear before a judge who hails from a similar background to yours, who looks more like you, who has gone through similar life experiences that might somehow be at play in your case. And Harvard and Yale should not be the barometer -- there are many fine graduates of many fine non-Ivy schools and many excellent judges (including those who sat on the Supreme Court) did not go to Harvard and Yale. Clearly, the best and brightest graduates of non-Ivy schools may indeed be the best and brightest, period. So, a non-Ivy graduation should certainly not be a disqualifier. Why, then, should overachievement -- often typified by having graduated from Harvard or Yale Law School -- be a disqualifier? How can that be? Being smart doesn't mean you don't have life experience, and going to elite schools doesn't mean you lack empathy.
Having said that, given the highly political nature of Supreme Court confirmations nowadays, is it so far-fetched to believe that if (the unquestionably qualified) Merrick Garland, just nominated to the Court by the president, had attended a law school other than Harvard or Yale, the president's detractors would add that surely bent arrow to their "we won't confirm" quiver?