05/12/2010 12:28 pm ET Updated May 25, 2011

Want a SCOTUS seat? Plan in High School, Before It's Too Late

As David Bernstein was quick to point out on the Volokh Conspiracy, Elena Kagan's confirmation will give us a High Court filled exclusively with Harvard and Yale Law School graduates:

I know that Harvard and Yale attract a disproportionate percentage of America's talented youth, but still, isn't this a bit much? Are there no similarly talented individuals who attended other Ivy League schools, other private universities or (gasp!) even state law schools?

Bernstein's rhetorical question -- of course there are similarly talented individuals elsewhere -- skips over the more interesting question of why it is that in many areas of endeavor, the high achievers have identical resumes, and those without certain credentials get shut out. The answer is that elite institutions--top law firms, banks, consulting firms, government agencies, etc.--look to other elite institutions--Yale Law, Harvard Business -- to do the pre-screening when there are slots to fill. Sure, they'll miss the equally talented people elsewhere who have the misfortune of being mixed in with the less talented, but from their perspective, that isn't their problem.

As people pass through these successively narrower gates, the relationships they form are with other "selection survivors." Then, when they move into positions of authority, who do they turn to when needing to tap someone for a key position? I have no doubt, for example, that there is an entire network of government decision makers linked by the fact that they, like Kagan, once clerked for Obama mentor Abner Mikva.

None of this is news. But is this really the best way for society to harness its talent? Because what it means is that for many fields of endeavor, we're effectively making decisions about people based on who they were and the choices they made between their junior year of high school and their junior year of college. (Elena Kagan, we are told, had her eye on a Supreme Court seat while in high school.) The limitations of this approach should be apparent to anyone who has ever known, or been, a nineteen year old. The problem is not that there is a system for separating the average, the good and the great, but that once you've missed that narrow post-adolescent window, there's scant opportunity for redemption. Sure, there are plenty of stories of people who didn't find their path until after that and still managed to reach the upper echelons of their professions, but increasingly, they are the exception that proves the rule (and tend to be clustered in the more entrepreneurial and freewheeling world of commerce). Fitzgerald wrote that there are no second acts in American lives. What he neglected to say was that for many, the first act ends long before one even knows it's over.