Elitism on the court is open and raw. For those not familiar with it, consider Scalia’s recent remarks to a student at American University’s Law School. He said that she should not expect to be considered for a Supreme Court clerkship given the school she attended. Scalia explained: “By and large, 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 if they come in the best and the brightest, they’re probably going to leave the best and the brightest, OK?” Many in the audience were not happy, but at least Scalia was being honest about the raging elitism at the Supreme Court. It is, of course, ridiculous to suggest that the top student at American is not competitive with the top students from Harvard. However, this prejudice against non-elite schools is perpetuated by justices like Scalia who rarely look beyond the top five schools for clerks.
Nominations like Kagan’s are the result of a network of graduates who work consciously or unconsciously to see that their own are nominated. Notably, after Kagan’s nomination, powerful figures from her Harvard years came forward to vouch for her abilities. Their message was the same: Despite her lack of a record, she is known in our circle as a real winner. She is, in a phrase, one of us. Indeed, reporters breathlessly reported how Kagan and Scalia are good friends and how she knows many of the main players from Harvard, as if it is the judicial equivalent to having graduated from the Hogwarts School of Witchcraft and Wizardry.