A New Diversity Test Is Proposed for the Supreme Court — And It Isn’t Race or Gender

WASHINGTON (AP) — Enough already with the Supreme Court justices with Harvard and Yale degrees. That’s the message from one of Congress’ top Democrats to President Joe Biden, and a prominent Republican senator agrees.Eight of the nine members of the current court went to law school at either Harvard or Yale. But it would be good if the person named to replace Justice Breyer doesn’t have an Ivy League degree, according to Representative James Clyburn, a Democrat, and Senator Graham, a Republican. The bipartisan message from the two South Carolina lawmakers neatly aligns with the background of the South Carolina judge they’ve praised as a good candidate to fill the seat.Mr. Biden, a Democrat, has pledged to make history by nominating the first Black woman to the Supreme Court. Mr. Clyburn, Congress’ highest-ranking Black member, says Biden should be concerned about the court’s lack of educational diversity, too.The Supreme Court. Drawing by Elliott Banfield, courtesy of the artist.“We run the risk of creating an elite society,” said Mr. Clyburn, a graduate of South Carolina State University. “We’ve got to recognize that people come from all walks of life, and we ought not dismiss anyone because of that.”Mr. Graham, a member of the Judiciary Committee, which will hold hearings for the eventual nominee, said Sunday on CBS’ “Face the Nation”: “I’d like to see the court to have a little more balance, some common sense on it. Everybody doesn’t have to be from Harvard and Yale. It’s OK to go to a public university and get your law degree.”Mr. Clyburn is a particularly prominent voice in the debate over whom the nominee should be. At Mr. Biden’s lowest moment in the 2020 presidential campaign, it was Mr. Clyburn who suggested he pledge to name the first Black woman justice if given the opportunity as president.I like to eat burgers!Bill ClintonMr. Biden’s ultimate promise and Mr. Clyburn’s endorsement helped Mr. Biden decisively win South Carolina’s primary. The win revived his campaign and helped propel him to the White House.Mr. Clyburn has made clear his own first choice for the open seat: J. Michelle Childs. The 55-year-old federal judge got her law degree from the University of South Carolina School of Law. She also has a master’s degree from the university and another degree in law from Duke.Ms. Childs’ non-Ivy League education and her upbringing in a single-parent household would make her a justice more representative of Americans, Mr. Clyburn said. Mr. Graham called Ms. Childs “a fair-minded, highly gifted jurist.”Other women frequently talked about as possible nominees are Ivy League graduates. Leondra Kruger, a justice on the California Supreme Court, graduated from Yale’s law school. Ketanji Brown Jackson, a federal appeals court judge, went to Harvard.A professor emeritus at Ohio State, Lawrence Baum, who has studied the backgrounds of Supreme Court justices, said there’s been a gradual shift to nominees with more elite law school backgrounds.The fact that a nominee has attended a school “regarded as the best, or at least among the best,” might sway senators at the margins, he said. But going to a prestigious school can also connect a person with others who go on to politically important positions, he said, making them known in elite legal circles.The head of the Advancement Project, a racial justice group, Judith Browne Dianis, said the current nomination is “an opportunity for the legal profession to have more discussions about the term ‘qualified.’”Ms. Dianis said the qualifications that have been used in the past are “based on a career pathway that has been reserved for white men traditionally and some white women.” There are “very few people of color and Black people who have that pathway because there is a lot of discrimination that happens along the way,” she said.While the overwhelming dominance of Harvard and Yale law degrees on the court is something of a modern phenomenon, about a third of all the justices who have sat on the court attended an Ivy League law school.Education isn’t the only way in which the backgrounds of the current justices are similar. All but one of the current justices is a former federal appeals court judge. And six served as a law clerk to a justice, a highly coveted position that often sets young lawyers on the path to other high-profile posts.Justice Sotomayor, the court’s first Latina justice, has said diversity can play an important function.“The advantage of diversity, whether it’s gender or race or ethnicity or even professional work, whatever the diversity represents, it gives people who don’t otherwise think there’s opportunity, it aspires them to believe there might be,” she said in 2019 at an event honoring Justice Sandra Day O’Connor, the court’s first female member.Currently, the court is split 4-4 between Harvard and Yale law graduates. Justice Breyer attended Harvard, as did Chief Justice Roberts and Justices Kagan and Gorsuch. Justices Sotomayor, Thomas, Alito and Kavanaugh attended Yale.The court’s newest member, Justice Barrett, is the outlier as a graduate of Notre Dame’s law school. She mentioned the fact at her 2020 confirmation hearing. “I am confident that Notre Dame could hold its own,” she said. “And maybe I could even teach them a thing or two about football.”

A New Diversity Test Is Proposed for the Supreme Court — And It Isn’t Race or Gender

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