The Ivy League, the Court and Diversity

Somewhere between Yalie Sam Alito’s confirmation in 2006 and Harvard Dean and Solicitor General Elena Kagan’s nomination in 2010, an Ivy League degree went from a credential to a liability.  Now with Kagan set to be confirmed, there has been an the odd objection that too many Ivy Leaguers will be on the high court. 

We need highly qualified women and minorities on U.S. courts.  On federal or state courts, the problem is the same: courts look much more like they did a century ago—very white and overwhelming male.  In fact, 27 state supreme courts are all white and two are all male.  In 17 state supreme courts, a lone woman serves.  Meanwhile in the federal system, the Eighth Circuit Court of Appeals is one woman away from all male.  If Elena Kagan is confirmed, she will be the third woman on the U.S. Supreme Court—the most women who have ever served at one time. 

Last year, I co-authored Improving Judicial Diversity, a Brennan Center report about diversity and state courts around the country.  The report highlighted the continuing absence of women and minorities on state courts and suggested ways to help remedy matters and make sure that our state courts looked more like our country. My conclusions were specific to states: state judicial nominating commissions should address the problems of implicit bias, beef up recruitment efforts by extending outreach to women and minority lawyers, advertising openings widely, and, making the process more transparent.  But many of the report’s findings would help improve judicial diversity on the federal level which, though traditionally more diverse than state courts, don’t reflect the nation’s increasingly diverse population.  Indeed, of the over one million practicing attorneys, one third are women and one tenth are minorities. 

The fact that there are many qualified diverse potential judges is in part due to the increasing numbers of those students graduating from top law schools.  This wasn’t always the case.  For most of the nation’s history, our top schools excluded women and minorities and so helped create a barrier to participation by and the advancement of minorities and women in the legal profession.  The lack of diversity on the bench also worked to rob the profession—and the nation—of contributions from a huge percent of our citizens.

My alma mater, Harvard has had a long history of sending talent to the nation’s courts. William Cushing who was a Harvard College graduate, was appointed by President George Washington to the first Supreme Court.  More than twenty Harvard men were tapped by subsequent presidents to serve on the Court. 

Naturally the University wasn’t a source of diverse would-be Supreme Court Justices until it diversified its own population. Founded nearly 375 years ago, for its first two centuries, Harvard only had a token or no black presence.  The first black graduate was George Ruffin at Harvard Law School in 1869; W.E.B. Du Bois was the first black man to snag a Ph.D. in 1895.  Dr. Du Bois wryly stated he was “in but not of Harvard”.  It took nearly a century from Ruffin’s breakthrough, along with a Civil Rights Movement and a change in philosophy in admissions before a significant minority student population showed up in Cambridge. 

Women travelled a parallel route to Harvard Yard.  Harvard’s sister school Radcliffe opened in 1879; it was not until 1999 that Harvard and Radcliffe fully merged.  At the Law School, the first woman didn’t graduate until 1953, a full 84 years after Harvard Law bestowed its first J.D. on a black male student. Title IX of the Education Amendments of 1972 – which requires equal educational opportunities for women at colleges and universities receiving federal funding –played an important role in changing Harvard’s exclusionary practices.

Religious tolerance was a long time coming at Harvard too and was slowed by the fact that restrictions on Jewish admissions came from the top. Recall that Harvard President Lowell infamously implemented a 15% cap on Jewish students in the 1920s because “too many” were getting in under a meritocratic admission system.

Eventually, Harvard and many of its peer institutions, turned a page and began actively recruiting talented minorities and women, regardless of religion, for both undergraduate and graduate programs.  When the Brennan Center studied the law school diversity during the past 20 years, we found Harvard, Stanford and its Ivy League peers were doing better than many state law schools at matriculating and graduating minorities and women.

The fruits of this and similar efforts to open up the Ivies are evident in leadership positions all over America, including 1600 Pennsylvania, both of whose residents have multiple Ivy League degrees.  This change in recruitment at the Ivies, now decades old, manifests itself in more diverse candidates for appointive federal offices, including the Supreme Court.  Finally the credentials from men and women, white and non-white, are more indistinguishable.

As a nation, we should harness the talent pumping out of these schools, and we shouldn’t miss out on half the talent pool by failing to consider women as equally serious contenders to the bench. Justice Sandra Day O’Connor noted last year, “[a]bout half of all law graduates today are women, and we have a tremendous number of qualified women in the country who are serving as lawyers and they ought to be represented on the Court.”  Elena Kagan has degrees from Princeton, Oxford and Harvard, clerked for a Supreme Court Justice and worked at the White House.  She certainly seems to fit the bill Justice O’Connor had in mind when she spoke of “qualified” women.

The Ivy League doesn’t have a lock on talent, either legal or otherwise.  As Christopher Edley wrote recently in the Washington Post, if there is any place in which elitism is appropriate, it’s the Supreme Court.  And sheepskin from the Ivies shouldn’t have a different import when the bearer is female.  If John Roberts is “supremely qualified” because of his Harvard degree, then so too is Elena Kagan.