Following Elena Kagan’s nomination, a few people are waking up to a rather startling reality: In what is supposed to be a new era of American openness, egalitarianism, and diversity, Harvard and Yale grads are dominant. If Kagan is confirmed, every single member of the Supreme Court will have attended Harvard or Yale. But that’s not all. Harvard Law grad Barack Obama beat Yale grad Hillary Clinton for the Democratic nomination and then became president. Yale grad George W. Bush beat Yale grad John Kerry and Harvard grad Al Gore. Yale grad Bill Clinton beat Yale grad George H. W. Bush. In fact, you have to go back a full generation, to Eureka College’s finest, Ronald Reagan, for America’s last non-Ivy president.
When you exclude all but two of the nation’s 160 law schools as sources for justices, it not only reduces the number of outstanding candidates but guarantees a certain insularity in training and influences on the court. This bias is not only elitist but decidedly anti-intellectual. Moreover, there is no objective basis for favoring these two schools. Annual rankings from law schools on publication or reputation or student scores show relatively small differences in the top 20 law schools. The actual scores of the small pool of students in the top tier vary by only a few points.
When you live and work in the South (like I do), you’re surrounded by Vanderbilt, Tennessee, Kentucky, and Alabama grads who can go toe-to-toe with the best that the Ivy League has to offer. So why the bias? Why the Ivy League dominance?
Ironically (perversely) enough, I think our nation’s size and enormous diversity actually helps create the problem. With so many schools spitting out so many high achieving graduates with sparkling CVs, top employers are desperate for some method of initial screening. After all, how many people can you interveiw? So they let the law schools (and universities) do the screening for them. Here is Justice Scalia explaining to law students about why he hires law clerks from only the “best” law schools:
By and large, I’m going to be picking from the law schools that basically are the hardest to get into. They admit the best and the brightest . . . and if they come in the best and brightest, they’re probably going to leave the best and brightest, OK?
The reality, however, is that the top law schools admit only a small percentage of the “best and the brightest.” Because most of my legal career has been spent in flyover country, I have rarely practiced with fellow Ivy Leaguers. The intellectual difference between the top grads at major state schools and my law-school classmates is negligible to nonexistent.
In the corridors of commercial and governmental power, however, few people are interested in casting a wide net in their search for top talent. It’s simply easy to hire a Harvard grad . . . you’re not going to get flack for it, and the risk of failure immediately shifts to the new hire. It’s not your fault if they fail; after all, they went to Harvard!
Then, once the young grad has that first job, his or her connections start to build. If you track the careers of many young Ivy League graduates, you’ll notice that they often move quickly from their first job — taking maximum advantage of the flexibility and mobility their degree affords — and will hop from place to place, with each new employer stocked with fellow Ivy grads. Thus, the degree is ultimately eclipsed in importance by the web of connections. The degree gets you in the door, connections take you to the next level, and then (perhaps) your talent takes you the rest of the way.
There’s just a higher burden for graduates of the University of Kentucky — no matter how brilliant. If they want to work at top Wall Street firms, they’d best have some credentials greater than 4.0 GPAs. Locked out of that first chance, the barriers for entry only increase unless their success at, say, a prominent Cincinnati firm, is so astounding that it can’t be ignored. Contrast this path with that of a mediocre Harvard grad — a recipient of “breathe-in, breathe-out B’s” (at most Ivy League schools, a “B” is so easy to attain that one must merely stay alive to receive it) — who will have multiple Wall Street offers, can provide marginal performance at their first job, and then lateral over to another Wall Street firm, all on the strength of their degree. It’s a nice gig if you can get it.
That’s not to say that Kentucky grads don’t go on to attain heights of power, wealth, and prosperity — particularly within their home state — but we should not assume that the collection of Ivy Leaguers in the Supreme Court, or in the White House, or in the halls of Goldman Sachs means that we are being led by the “best and the brightest.”