WASHINGTON – Chief Justice John Roberts soon will lose his majority on the Supreme Court. With Judge Brett Kavanaugh nominated to replace retiring Justice Anthony Kennedy, Harvard Law’s 5-3 advantage over Yale could become a 4-4 tie.
The justices’ all-Ivy background – Ruth Bader Ginsburg has a law degree from Columbia – is just one way Kavanaugh should feel right at home if confirmed to the Supreme Court.
Presidents of both major parties have been choosing nominees of similar professional and educational experience for decades because the stakes have risen so high in filling Supreme Court vacancies. Neither side wants to risk a surprise in such a highly polarized political environment by picking a justice who turns out not to vote as expected.
“With virtually guaranteed opposition from across the aisle, presidents are pushed to nominate individuals with cookie-cutter ‘elite’ qualifications and extensive federal appellate experience. This is unfortunate,” Jonathan Adler, a professor at Case Western Reserve University School of Law in Cleveland, wrote in an email. “It wasn’t that long ago when it was common for presidents to nominate judges with no prior federal court experience or judicial experience at all.”
For the court’s first 178 years, all the justices were white men. That changed when Thurgood Marshall joined the court. Fourteen years later, Sandra Day O’Connor became the first woman to serve as a justice.
By sex, race and ethnicity, the court is more diverse than ever. White men have a bare majority on the nine-justice court. There are three women – one of whom is Latina – and an African-American, Justice Clarence Thomas.
But the court has moved in a different direction by other measures of diversity. Kavanaugh would be the fifth justice who worked as a law clerk at the high court early in his career, the first time a majority of the justices would share that experience.
Kavanaugh would join three other justices who served on the D.C. Circuit before relocating to the Supreme Court, less than a mile away. All but Elena Kagan had been appellate judges – and she would have been had Senate Republicans approved her nomination to the D.C. Circuit by President Bill Clinton.
A lengthy paper trail of appellate opinions often makes clear how a high-court candidate is likely to vote on a range of issues.
But that means other kinds of experience get less emphasis, or none at all. No justice has significant experience defending criminal suspects or working in state courts, Adler noted.
And the court has a strong East Coast bias, with Justice Neil Gorsuch and Thomas the only justices who spent any of their professional lives west of the Potomac River.
There has been no one with experience in elected office since O’Connor, who had been a state senator and judge in Arizona. Justice Sonia Sotomayor is the only former trial judge.
Kavanaugh also would be the sixth Roman Catholic among the current bench, and the second, along with Gorsuch, to graduate from the same elite boys’ Catholic high school in suburban Maryland. The other three justices are Jewish.
The one would-be justice who would have brought a more diverse background to the court was Harriet Miers, a Texan with a law degree from Southern Methodist University and a close association with President George W. Bush. Miers, who had no judicial experience, withdrew her nomination in 2005 under pressure from conservative groups and concerns from senators that her responses to a standard questionnaire for nominees were inadequate. Justice Samuel Alito, an appellate judge with a law degree from Yale, was Bush’s next choice.
One possible explanation for the disappearance of geographical, academic and professional diversity is the people who are doing the screening. “The networks of lawyers who focus on these issues, and who can influence the nomination process, are often based in Washington, DC,” Orin Kerr, a University of Southern California law professor, wrote in an email.
Ambitious young lawyers who might someday see themselves as justices also know what it takes to be considered for the plum jobs atop the federal judiciary, Kerr said. “So top nominees are credentialed at a young age in the same way to get them on the list later,” he said.
In announcing Kavanaugh’s nomination Monday night, President Donald Trump said he was impressed with the judge’s academic credentials. He passed over other finalists who attended law school at Michigan, Notre Dame and Georgetown.
The biggest problem for Roberts in the short term could be coming up with new ways to put down his colleagues from Yale. When he spoke at Harvard Law’s bicentennial celebration with the four other Harvard-trained justices in attendance, Roberts pointedly noted, “A minority of my colleagues send their regrets.”