Photographer: Andrew Harrer

The next Supreme Court justice: Looking beyond Harvard and Yale

February 18, 2016 Dan Glickman

Bloomberg Government regularly publishes insights, opinion and best practices from our community of senior leaders and decision-makers. This column is written by former Secretary of Agriculture and former Congressman, Dan Glickman. He is a Senior Fellow at the Bipartisan Policy Center and Vice President of the Aspen Institute.

The untimely death of Justice Antonin Scalia has sent the political and legal world into a fevered pitch of speculation, remembrance and analysis about the future of the highest court in the land. I strongly believe that President Obama should nominate someone to replace Justice Scalia, and I believe the Senate should give that person a fair hearing based on his or her qualifications.

But what qualifications are important in a Supreme Court justice? Intelligence, certainly and also strong ethics. Of course, the media and many lawmakers and interest groups have stated that ideology and politically consistent rulings are the primary metric by which any nominee should be measured. These are all factors that the Senate no doubt will consider.

President Obama made diverse backgrounds a key element of his nominations by choosing women, including a Latin-American justice. In fact, by ethnicity, gender and religious measurement we have the most diverse court in American history. But the court does have one element of total homogeny: every single justice attended either Harvard or Yale Law School.

Now, both of these prestigious institutions rank among the best universities in the world. Clearly, no matter what side of the aisle you come from, we all want intelligent people on the Supreme Court. But these schools do not have a monopoly on producing smart lawyers. When an individual is able to, through force of intellect, matriculate and excel at Harvard or Yale Law they prove beyond a shadow of a doubt they are among the top minds in America’s legal community. However, there is a certain cloistered nature to joining this elite community. People of this pedigree often live in a world that does not necessarily parallel the life experiences of most Americans. And that is where more diversity is needed.

What’s needed on the court are qualified individuals whose personal experiences vary from those of their colleagues. Take, for example, the ruling on Citizens United. This was an extremely long opinion that was full of legalese and short on practical understanding of the impact of unlimited money on political campaigns. I can’t help but think that if more of the justices had more direct experience in politics they may have thought twice about couching their ruling in purely legal scholarship and has more sense about the real life impact of their decision. A diversity of law school background does not guarantee a diversity of personal experience, but more likely than not it does create a deeper reservoir of personal experiences and relationships.

The Supreme Court has not always had such a pedigree. Indeed, many of the most significant and important rulings in American history were made by justices not from Harvard or Yale like Thurgood Marshall (Howard), Hugo Black (Alabama), and Earl Warren (UC Berkeley). Robert Jackson, who ruled on landmark cases like Brown v. Board of Education, was a “county-seat lawyer” who only completed one year of law school. Yet he was known for his thoughtful opinions and defense of individual liberty.

There is nothing wrong with Harvard or Yale, and if your son or daughter is accepted to those law schools you shouldn’t think twice about sending them there. But in every state in our great country there are fine law schools, some public and some private, which produce top quality minds who have achieved real excellence as judges, academics or lawyers. In an era of unprecedented economic inequality, political polarization and social stratification, we can add to the texture and richness of our great democracy by widening the legal backgrounds of our Supreme Court Justices.

This column does not necessarily reflect the opinion of Bloomberg Government.