Elena Kagan: Obama's Inevitable Court Choice (She's Harvard)


Walter Shapiro

Senior Correspondent
Nowhere in the Constitution does it say that members of the Supreme Court must be lawyers. But a long line of activist presidents – both Democrats and Republicans – have altered the original intent of the Framers so that a degree from an Eastern elitist law school is now almost a constitutional necessity. If Elena Kagan (Harvard Law '86) is confirmed for the Court, all nine justices would have received their legal training at Harvard or Yale.

This is one of those moments when you sense that American democracy is more of a rigged game than they taught you back in high school civics classes. Few object to a meritocracy in which people, regardless of family backgrounds, are judged by what they have accomplished in life. But should that binding decision have been made by the admissions committees at two law schools when the applicants were still in their early 20s? Imagine a guidance counselor shouting, "Future Supreme Court justices over here. Everyone else, best of luck with your legal careers – if you don't aim too high."

Once the criterion was Harvard, Yale or bust, it was almost inevitable that Elena Kagan, the former dean of guess-what-law-school, would have been tapped for the Supreme Court. This is not an exaggeration. Let's do the math together.

Much like patients who once craved an elderly, bearded, Viennese-accented psychiatrist, youthful presidents like their Supreme Court justices to be older than they are. So the 50-year-old Kagan, who is just 15 months older than Barack Obama, was about the youngest possible contender to succeed Justice John Paul Stevens (who amazingly enough attended law school at Northwestern). And no less an authority than Bill Clinton bluntly declared last month in a TV interview that 62-year-old Hillary Clinton was too old to have a productive and lengthy career on the Court.
So what Obama was looking at was the universe of would-be Supreme Court justices who run the gamut of legal possibility from Hillary Clinton (Yale '73) to Kagan (Harvard '86). Over that 14-year period, roughly 10,000 students received J.D. degrees from Harvard or Yale. So it is easy to glibly assume that Kagan's chances of being tapped for the Court, despite her Ivy League pedigree, were a daunting 1-in-10,000.

More Elena Kagan Coverage:

- Elena Kagan's Long Journey
- Kagan Another New York Nominee
- Opinion: Victory for Equal Justice
- Anticipating Kagan's Confirmation Hearing
- Republicans Inject Slavery into Kagan Debate
- No Protestants: A New Order
- Kagan Well Positioned for Confirmation
- Elena Kagan and John Roberts
- Elena Kagan: Full Coverage

Not so fast. According to Harvard Law School, 6 percent of current law students are foreign citizens. Assuming that proportion has been consistent over time at both Harvard and Yale, that would cut our Supreme-Court-eligible pool to 9,400.

Obama, in introducing Kagan, lavishly praised her as "one of the nation's foremost legal minds." This is pretty much presidential boilerplate, since George W. Bush in nominating the ill-fated Harriet Miers to the Supreme Court in 2005 spoke of "her distinguished legal career." But it is hard for any president to make that kind of "greatest legal mind" argument if the nominee had a dismal academic record, even at Harvard or Yale. So let's rule out the bottom 25 percent of all of these 14 law school classes.

Even after this rigorous pruning, Kagan was still competing with 7,049 others in the ultimate Harvard-Yale game. But Obama also went out of his way to praise "her temperament, her openness to a broad array of viewpoints." That excessive tolerance for the opinions of others is not a quality instantly associated either with lawyers or Type-A Ivy League success stories. So let's lop off another third for having the rigidity of viewpoints that equips you for arguing on cable television, but does not fit Obama's image of a weather-vane Supreme Court justice.

For those scoring at home, we are down to 4,700 possible Supreme Court justices. But, wait, another quarter of them have spent decades performing politically awkward (but highly lucrative) legal tasks such as advising leading Wall Street firms on the derivatives business or helping negotiate job-killing mergers. This is not the moment to boast that you were general counsel at A.I.G. or at Fannie Mae. So wave good-bye to another 1,200 Harvard and Yale legal graduates who have done so well in securities law.

What an omission -- I totally forgot that Republicans are allowed to attend Harvard and Yale if they are quiet about it. So assuming that 20 percent of these lawyers chose the wrong political party in 2008 (although they did fine with their secret Federalist Society handshakes under Bush), that reduces our pool to (yikes!) just 2,800 possible justices.

Hard though it is to believe after listening to presidents anoint would-be Supreme Court justices, not everyone attends law school for high-minded purposes. Sure, Kagan spoke about "professionalism, public service and integrity." But other lawyers (warning: shocking revelation ahead) think about money. And compared to most successful corporate lawyers, the Supreme Court pays chump change ($214,000 to be precise). When you add up two mortgages (never forget the country house), private school tuition, country club dues, ski vacations and the other bare necessities of life, many Harvard and Yale law grads can't afford the sacrifice of putting on those black robes. Those fiscal facts of life have trimmed our Supreme Court possibilities in half to just 1,400.

The trick to having a successful Supreme Court confirmation is to have never done or said a single thing that is either controversial or (gasp!) interesting. But lawyers – even those with a sterling dedication to public services – do take on unpopular clients. Maybe as a young associate at a blue-chip firm, the lawyer represented death-row inmates in their final appeals or even wrote a pro-bono brief in an abortion case (on either side). Even a stinging letter to the editor of the local paper can be transformed into a smoking-gun admission of judicial activism under the take-no-prisoners rules of Court fights. So throw out another 400 contenders for the Court for the sin of being . . . well . . . human beings.

Still, 1,000 surviving Harvard and Yale law graduates represents a massive applicant pile. Until, of course, you get to the new religious test. With the retirement of Stevens (a Protestant), the entire Court will be either Catholic or Jewish, assuming Kagan is confirmed. If you eliminate all Protestants – and toss out a few atheists, Hindus and Buddhists along the way – there are only 300 Supreme Court possibilities left standing.

And how many of them, do you think, paid all the proper Social Security taxes for their household help? That little wrinkle was enough to eliminate Zoe Baird as Bill Clinton's would-be attorney general – and it certainly would be a more potent disqualifier for the Supreme Court. Watch the long line of downcast judicial candidates wandering off, cursing their tax preparers and the few corners they cut trying to find affordable child care.

Now we are down to Kagan and the other 149 survivors in this game of judicial jeopardy. But then there is also the Douglas Ginsburg precedent: Ronald Reagan's star-crossed Supreme Court pick had to withdraw his name in 1987 for too publicly smoking marijuana. Maybe a few puffs would not scuttle a nomination today, but a drunken-driving conviction or a messy divorce decree definitely would. In fact, probably half of the remaining candidates have something on their records that they do not crave having aired on Fox News.

Then there were 75. Whoops, two make their living as Mob mouthpieces. Three others were disbarred. Then there are 23 who retired at age 50 and are only interested in golf. And the 37 who always hated the law – and only got through Harvard or Yale because their parents insisted. Eight others have completely disappeared from view and do not even attend reunions.

Drum roll, please, maestro. We have gone from 10,000 potential Supreme Court justices to exactly two – Kagan and Federal Appeals Court Judge Merrick Garland (Harvard Law '77). Kagan won the presidential coin toss, so Garland will be kept in reserve if another vacancy opens up. Because the enduring motto of the Supreme Court remains – equal justice under law from Harvard and Yale.