A Non-scandalous, Non-ideological Case Against Brett Kavanaugh

The fight over Brett Kavanaugh’s Supreme Court nomination has lately been dominated by hotly contested allegations that he behaved badly toward women while drinking heavily in high school and college.

On that controversy, I won’t comment prior to the upcoming hearings. Yet the sustained attention it has cast on the nominee’s unusually rarified educational background has left me increasingly averse to his confirmation for reasons that have nothing to do with his accusers or their claims.

Kavanaugh attended Yale Law School––a fine institution. I do not object to confirming a Yale Law graduate to the Supreme Court. I also wouldn’t oppose confirming a graduate of Harvard Law to the Supreme Court.

In a patrician mood, I’d even take two of each.

The fear driving conservative support for Kavanaugh

But I do worry about a Supreme Court where literally all nine members received their respective legal education at either Harvard or Yale Law.

Behold the status quo:

• Clarence Thomas attended College of the Holy Cross and Yale Law.
• Sonia Sotomayor attended Princeton and Yale Law.
• Samuel Alito attended Princeton and Yale Law.
• Elena Kagan attended Princeton, Oxford, and Harvard Law.
• Neil Gorsuch attended Georgetown Preparatory School––the same elite high school as Kavanaugh¹––Columbia University, and Harvard Law.
• Ruth Bader Ginsburg attended Cornell University, Harvard Law, and Columbia Law.
• Stephen Breyer attended Stanford University, Oxford, and Harvard Law.
• John Roberts attended Harvard and Harvard Law.

By way of comparison, the Supreme Court in 1980 counted three Harvard Law graduates, two Yale Law graduates, and one graduate each of law schools at St. Paul College, Northwestern University, Howard University, and Stanford. Go back further and many more institutions are represented.

Why is today’s tally objectionable?

One needn’t doubt the value that an Ivy League–educated jurist can bring to the bench to see that diminishing marginal returns are upon us, even as the gains from diversity of educational background go untapped.

As Jonathan Turley wrote during the Gorsuch nomination fight, “When you virtually 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.”

He made a similar argument after President Barack Obama put jurists from Harvard and Yale on the court:

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 law schools. The actual scores of the small pool of students in the top tier vary by only a few points. While Harvard and Yale are routinely ranked in the top spots, the faculties and student bodies are not viewed as manifestly superior to such competitors as Stanford, Chicago, Michigan or other top schools …

The favoritism shown Harvard and Yale should be viewed not just as incestuous but as scandalous. It undermines educational institutions across the country by maintaining a clearly arbitrary and capricious basis for selection. It also runs against the grain of a nation based on meritocracy and opportunity. If there is one place in the world that should be free of such baseless bias, it is the Supreme Court of the United States.

Among the consequences: a high court where every sitting justice has spent his or her entire professional career seeing the American legal system through the lens of someone with numerous personal, social, and institutional connections to the country’s most powerful, well-connected elites.

A new jurist might have added a contrasting perspective.

But Kavanaugh has never known a time without such connections, even counting his youth before law school. The son of a judge and a lobbyist, raised in Bethesda, Maryland, a tony suburb of Washington, D.C., he attended a private high school largely populated by the sons of elites, one that already counts a sitting Supreme Court justice as an alum. As an undergraduate, he went to Yale. He has lectured at Harvard.

Seven parenting tips to protect your kid’s Supreme Court nomination

Put another way, there is no possible nominee who’d do less to remedy this flaw in the institution than the man put forward by Donald Trump, who got elected by attacking the insularity of Washington elites.

Jonathan Chait captures the absurdity of it all:

Trump is reportedly fixated on appointing a justice from an Ivy League institution, ideally Harvard or Yale … His administration systematically disregards science and expertise; its officials statements frequently contain misspellings; his entire persona is based on insulting the intelligence of the American public in the belief that even the crudest lies will go undetected by his infinitely credulous tribal fan base. You might hope that this relentless anti-intellectualism would have at least the tiny side benefit of social populism.

But no. Trump is delivering both a relentless assault on the American mind while at the same time promoting the worst forms of old-fashioned credentialist elitism. It is … perfectly consistent with the tone of the entire presidency, which has managed to retain all the ugly aspects of populism while jettisoning all its compensating features.

Another consequence is a jurist with relatively compromised impartiality. After all, Kavanaugh has accumulated a lifetime of ties to Washington insiders through his upbringing, schooling, long residence in the swamp, and work for both Ken Starr and a quintessentially establishment law firm. And his wife, Ashley Estes, was personal secretary to President George W. Bush, previously worked for him in Texas, and subsequently worked for his foundation. None of those resume line items is discrediting to Kavanaugh or his wife, but they do enmesh the nominee in endless conflicts of interest born of personal ties as he rules on matters near and dear to the Washington elite.

Why choose all that baggage?

A non-scandalous, non-ideological case against Brett Kavanaugh

If Kavanaugh’s nomination fails, it won’t be for the reasons discussed in this article. Other matters loom larger. And the GOP leadership’s supposed aversion to Washington elites who were acculturated at fancy northeastern colleges is as dubiously earnest as it is highly selective.

Still, if Kavanaugh’s nomination is defeated, America would benefit from a replacement nominee who boasts not only the imprimatur of the Federalist Society (a better bet than whatever heuristic Trump would employ in its absence!) but also at least some background in institutions and corners of life that are somewhat more removed from governing elites and their insular interests, with the distinct acculturation, perspective, and comportment that result. The same advice holds if the next person nominated to the Supreme Court is chosen by a Democratic president. As attentive readers might guess, the last such nominee, Merrick Garland, went to Harvard and Harvard Law.