Take a brief look at the educational pedigrees of those who serve on the Supreme Court. Then look at the educational pedigrees that they hire to clerk. It's not hard to see a trend - Harvard and Yale dominate almost to the point of willful monopoly. Logical, right? Well, no. Not even remotely. For those in the know, law admissions is strikingly and uniquely numbers-driven. While other professional schools require interviews, law schools, almost universally do not. Now, if the LSAT or one's undergraduate GPA were absolute and thorough predictors of law school success, the admissions process to a school might be a reasonable basis to "weed out" those less intellectually skilled. As it is, it's not. The LSAT has a respectable correlation to first-year law school success of 0.4. Far, far from foolproof, but not bad for a standardized test. At the time Barack and Kagan took the LSAT, it was not even as good a predictor.
However, again, we are talking about a mediocre correlation to ONLY the 1st year of one's 3-year JD trial-by-fire. This does not reflect upon the ability one will have to become a well-published scholar, experienced litigator, skilled administrator, or complete wash-out. In fact, the only reflection is that once one gains admission to Harvard or Yale, one has a golden ticket.
Yale has no grades for its law school, presumably to foster a more collaborative spirit and not punish the equally superior candidates by pitting them against each other. Princeton Review shows another side to it: Yale students study less (by far) than students at any other school in the country - a paltry 1.5 hours per day. Most law school students fall in the 4-6 hour a day range. Harvard also eschews traditional grading in a way that makes evaluation difficult, and also engenders a lower "study burden" than most schools.
It appears, then, that the court and even public share the same views as the Social and Economic Darwinist Antonin Scalia, speaking about Harvard/Yale admits to an American University law student: "By and large," he said, "I’m going to be picking from the law schools that basically are the hardest to get into. They admit the best and the brightest, and they may not teach very well, but you can’t make a sow’s ear out of a silk purse. If they come in the best and the brightest, they’re probably going to leave the best and the brightest, O.K.?"
Essentially, those entering Harvard and Yale are awarded by the automatic assumption that their admission means they are simply the best and the brightest.
Yet, it is also clear that many students, even some who are admitted to Yale and Harvard (and other elite schools), attend lower-ranked schools because of scholarship awards, proximity to family and friends, the focus of certain programs or institutes at various schools... While a smattering of Stanford (often ranked higher than Harvard throughout the last 25 years), Michigan, NYU, and even Northwestern graduates earn SCOTUS clerkships, the intense "elitism" that is showcased by even the more progressive members of the court is striking. There are roughly 200 law schools, and even if one throws out some of the schools that barely maintain their accreditation, a large number of intelligent and well-qualified students are eliminated 6 months before they take their first Con Law class.
Now, I'm not so aloof as to admit that I don't have a personal stake in this debate. I'm attending William and Mary law school in the fall (on a large scholarship), which is a well-respected law school with a top-5 Constitutional Law program and the 3rd ranked Constitutional Law Journal. Yet, only 1 (yes, ONE) student from William and Mary has been selected to clerk for the Supreme Court in the last 50 years. Several highly respected schools have not had a single one.
Why is this so relevant to Elena Kagan? Well, because most of her advancement has been due to her SCOTUS clerkship. Having a SCOTUS clerkship is the single most impressive and weighty credential one can have before entering into the general workforce of law. It gives one a monstrous heads up when looking for employment as professor, dean, large firm associate, litigant for prestigious public interest organizations, as well as (eventually) state and federal judge. Even beyond the Supreme Court, other Federal Appeals courts rely heavily upon the Ivy League for their clerks, who get a smaller but equally applicable boost in their future search for employment.
Essentially, by selecting Kagan as a Supreme Court clerk, Obama (himself a Harvard Law grad) is simply perpetuating the vicious cycle of exclusion that is extraordinarily difficult to justify as anything but institutional nepotism. Certainly, "alumni loyalty" is something that most good schools, undergrad and graduate alike, trumpet as a key selling point to prospective students. But, when alumni loyalty is carried beyond simple hiring practices and into a sphere of influence that so directly and universally impacts the general populace, and must necessarily keep the interests of that general populace in the forefront of jurispridence (or so I'd argue), "alumni loyalty" becomes a dangerous and exclusionary force that acts within the chain of causal determination to become a vicious cycle.
When we speak about diversity in the body politic, we usually are referring to Race and gender, but diversity of background and experience should also be a major consideration. The SCOTUS clerk with the most diverse background is almost certainly Clarence Thomas, and even he is the beneficiary of a Yale law degree. John Paul Stevens was the only non-Harvard/Yale grad on the bench, coming from "lowly" (sarcasm) Northwestern. Now, with the almost certain confirmation of Kagan, we will have a sweep - with no end in sight.
Now, I don't mean this to argue that Kagan is unqualified, though she is likely underqualified compared to past appointees and nominees (Miers excluded). She is not a prolific scholar, has little history as a litigant, and displayed a surprising lack of knowledge of some important cases during the Citizens United case. That being said, she is certainly a woman of strong intelligence and legal skill. I simply believe that there are many, many other candidates with backgrounds in academia, private and public practice, and the judicial system who are as or more qualified, and likely as or more progressive than her. I admit I would have preferred (by far) U.Texas grad Diane Wood out of the most-heavily talked up candidates, while I also had (from a background/school perspective) some sympathy for Montana U. grad Sidney Thomas. Even then Wood was a rare outsider who landed a SCOTUS clerkship, rather than an outsider who rose up without having won the non-Harvard/Yale SCOTUS clerk lottery.
I don't mean to argue that Harvard and Yale grads aren't, on average, more intelligent (depending on how one defines that) and prepared than the average graduate of Hofstra or Denver. What I am arguing is that a top student from a lower-ranked school may very well have just as sharp or sharper a legal mind as a top student from an elite school. Schools that are genuine peers (or in some ways superior), like Stanford, Chicago Columbia, Berkeley, etc... may rightly believe that even the perception of meritocracy in the Yale/Harvard conspiracy is grossly misplaced.
In the end, we have the empty tautology of "it is what it is" to look at regarding this discrimination, but that doesn't mean we have to approve of it. Certainly I don't, even if I'll never appear to Scalia (who I'd never clerk for on princple, of course) or any other member of the court as a "silk purse".