This past Sunday, during the panel session on "Fox News Sunday", the Weekly Standard's Bill Kristol, a Harvard graduate and professor, urged the president with his next Supreme Court pick to stand up to a powerful interest: the Ivy League.
"I think it would be good to have a nominee that stood up against powerful interests like the elite law schools, which are a powerful interest in the U.S. and have done a lot of damage," Kristol said. "And I believe if Elena Kagan is nominated, which I expect, the Solicitor General, every person on the court will have gone to Ivy League law school."
This was surely not just a bit of self-deprecation on Kristol's part. Nor was it an attempt to sabotage Kagan's chances. After all, he went on to nearly endorse Kagan, saying that she was a "very respectable choice" with "impressive academic credentials."
Rather, Kristol's sentiment is part of a broader populist wave that has become a feature of recent Supreme Court nomination and confirmation battles. An Ivy League education or a career in the "judicial monastery" (see: U.S. Court of Appeals or the academic world) is considered as much a vice as a virtue. A humble origin with a non-traditional resume -- and certainly adding a bit of diversity to a bench that has been composed almost exclusively of white men -- is in vogue.
Supreme Court historians argue that the trend is fairly recent. Professor Lucas A. Powe Jr., at the University of Texas Law School, said it has only been evident in the last 30 years. And while it has become more commonplace, it also remains a bit perplexing -- not the least because presidents usually end up choosing the so-called academic and judicial elites whom they initially avoided. Since 1900, 31 of the 53 Supreme Court Justices appointed attended an Ivy League institution (either as an undergraduate or a post graduate) -- that includes Stevens's eight fellow justices.
It started most prominently with Richard Nixon, whose own personal insecurities made him naturally predisposed to the argument that the court would benefit from the inclusion of people of non-privileged upbringing.
"He didn't want an Ivy Leaguer," said David Yalof, a political science professor at the University of Connecticut. "He went to Duke and had a paranoia that Harvard people looked down at him. He surrounded himself with Ivy Leagues types... But he was very interested in his first term to name someone who wasn't an Ivy Leaguer. The irony, of course is that three of his four justices attended Harvard (Harry Blackmun, Lewis Powell, William Rehnquist). The only justice of the four who had no ties whatsoever was the Chief Justice Warren Burger, who went to the University of Minnesota at night as an undergrad."
(Burger also attended the St. Paul College of Law and graduated in 1931. The school is now known as William Mitchell College of Law).
Nixon was the most explicit of the presidents when it came to pushing for non-traditional appointments to the court. His philosophy, moreover, was far more anti-elite than his predecessors or successors. But he certainly wouldn't be the last. Reagan pledged to appoint a woman to the bench, only to quickly realize "how few women candidates there were of requisite age," as Powe puts it. "That is how he ended up with Sandra Day O'Connor (a Stanford grad who worked on the Arizona Court of Appeals)." Similar circumstances held true with Reagan's successor, George H.W. Bush, who felt acute pressure to appoint a minority to the court and settled on Clarence Thomas (Judge of the United States Court of Appeals for the District of Columbia Circuit).
Bill Clinton, meanwhile, wanted a nominee with a ''big heart'' and real-world experience who would elicit a ''Wow!'' reaction from the nation. He also desperately wanted a politician for the post, turning to former New York Governor Mario Cuomo and Senate Majority Leader Greg Mitchell (also floating the names of Bruce Babbitt his interior secretary, and Richard Riley, his secretary of education). He ended up with two Ivy League graduates with judicial pedigrees: Ruth Bader Ginsburg -- Cornell (AB) Columbia (JD) Judge of the United States Court of Appeals for the District of Columbia Circuit -- and Stephen Breyer -- Harvard Law, Judge of the United States Court of Appeals for the First Circuit.
George W. Bush thought it smart to take his Supreme Court vetter, Harriet Miers, and make her the nominee. Her education at Southern Methodist University was an alluring trait, but even more so was her philosophy on executive powers. But conservatives weren't comfortable with the choice. And in the end Bush settled on another Ivy League graduate with a judicial pedigree: Justice Samuel Alito (Princeton BA, Yale Law, United States Court of Appeals for the Third Circuit)
Why Nixon, Clinton, and the latter Bush all moved away from their court-nomination philosophies, is explained by a wide range of factors, including coincidence. Jeffrey Toobin, the legal writer and opiner for the New Yorker and CNN, suggested that the heavy Ivy League composition of the current court is owed to the fact that the Appeals Court circuit has become a launching pad for nominees.
"The federal Appeals Court have traditionally been oriented towards people of specific legal achievement, which starts, generally with a good law school," he said.
Why presidents have looked to the Appeals Court for replacement picks, meanwhile, is owed primarily to political expediency. "I think what is very important is that recent presidents have been concerned about having too much of a paper trail," said David Atkinson, author of "Leaving the Bench: Supreme Court Justices at the End." "The nomination of Robert Bork comes to mind."
The logic, in the end, is inverted. While it makes sense that a senator or an administration official will have an easy confirmation because they have been either confirmed by the Senate already or are on friendly terms with senators, they also represent a bit of a gamble, owing to the myriad votes or public statements from their earlier careers. What ends up happening, in the end, is the president makes the easy, if not logical choice -- going with the nominee who is stellar on paper but short on the paper trail.
All of which leads up to Obama's pending choice to replace Stevens. While Kristol may already be bemoaning the possibility of another Ivy Leaguer on the court, the betting money is that such a person will end up there regardless. Kagan, after all, has emerged as the frontrunner. Another choice, Merrick Garland, went to Harvard undergrad and law school; Chief Justice of the Supreme Court of the U.S. state of Georgia, Leah Ward Sears, is a graduate of Cornell; Michigan Governor Jennifer Granholm went to Harvard Law too, and Harvard Law Professor Martha Minow got her masters at Harvard before going to Yale for her law degree. The only short-listers who satisfy Kristol's demand are Department of Homeland Security Secretary Janet Napolitano and Judge Diane Wood.
"It is odd that every remaining Justice on the Supreme Court went to Harvard or Yale Law School," remarked Toobin. "And it may well be that this factors in. But I don't think it will stop [the White House] from appointing someone in the end."