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Time for a politician, or two, on the court

Posted: 3/9/22

By Vincent Scala

Every now and then, it’s really important to look around corners and analyze things from a different angle. In an opinion piece I wrote the other day praising Ketanji Brown Jackson, I did what virtually all lawyers (and politicians, journalists and citizens today do. I emphasized her “credentials”: Harvard College (magna cum laude), Harvard Law School (cum laude and Law Review), clerkships for Federal judges and for Justice Breyer himself, District Court and U.S. Court of Appeals judgeships.

I didn’t mention her work with poor criminal defendants. I didn’t mention her debate team in high school. I didn’t emphasize any community work she may have done over the years to provide access to legal services for immigrants or the poor. I didn’t mention that she is balancing the responsibilities of being a wife, mother and daughter. I didn’t really mention her ability to bring people to her point of view and try to build coalitions. I talked above all about her stellar and impressive Ivy League education.

Don’t get me wrong. An Ivy League education is certainly impressive. No question about it and no debate there. Having said that, isn’t going to a local college while working part-time also impressive? Might that not show inner strength of character, perseverance, and ability to set and meet goals?

Exclusive company

Fun fact: There are 146,850 students in Ivy League colleges. There are nearly 20 million in college altogether. Without getting in the weeds, since obviously not all of the Ivy Leaguers or non-Ivy Leaguers are going to become attorneys, we appear to have excluded 99.25 percent of Americans from having a chance at ascending to the High Court!

In a country that touts diversity, advancement and mobility, is this really the best we can do? Is excluding 99 percent of students from the get-go really the way to discover excellence and temperament? We have been conditioned to believe that Ivy League educations and federal judicial positions are not only a good credential but actually mandatory requirements for Supreme Court justices.

It’s damn near impossible to make the causal connection, but the emphasis on exclusively Ivy League Justices has pretty much paralleled the growing inequality of income in the U.S. and the accumulation of wealth in the hands of a very few. It has also paralleled the tremendous power of money in politics.

Political influence today (beyond the quadrennial vote nonsense participated in by less than half the American people) seems to be the exclusive province of the rich. The American people instinctively know this. Do you or I know anyone who really believes that the views of the American people writ large are reflected in the halls of congress or state legislatures?

If public opinion polls are to be believed, north of 90 percent of us believe in sensible gun safety laws. A majority believe in more, not less, access to health care. A majority believe that corporations should not be given the same “rights” as people.

A public education

Yes, Brown Jackson is a wonderful example of one person who was able to navigate the system and gain admission to Harvard. While this is cause for celebration, she is one out of 19 million annual college students. While she is going to have a high profile in the coming decades, her accomplishments in this regard are really a speck of sand on the beach. The problem is still the problem and it isn’t going away any time soon. Having said and conceded all that, let’s examine the Supreme Court justice who virtually every analyst has concluded was absolutely the most consequential judge of the 20th century.

His name was Earl Warren. He was, by today’s standards, unfit for the job of not only Supreme Court justice but chief justice! Today, every single Supreme Court Justice bar Amy Coney Barrett (Notre Dame Law) went to an Ivy League school.

Every sitting justice clerked for a federal judge. Not Earl Warren. Today, every justice was previously a federal judge with the exception of Elena Kagan, who was the dean of Harvard Law School and solicitor general of the United States (not exactly out of the box, you’d have to concede).

Warren was none of those things. He attended the University of California, Berkeley, where he received his bachelor’s and law degrees. He never served as a federal or state-level judicial clerk. He was never a federal district court or court of appeals judge. He was a politician through and through.

He was appointed Alameda County district attorney and elected California attorney general, and California governor (three times). He also was chairman of the California Republican Party and the Republican vice presidential nominee alongside Tom Dewey in 1948.

In 1952, he unsuccessfully sought the presidential nomination but was defeated by Dwight Eisenhower. In exchange for his support, Ike promised him that he would be his first pick for the Supreme Court (pure unadulterated politics).

Changed America

He was confirmed as chief justice the next year. During his nearly 16-year tenure, the transformative change he cajoled (politics again), built and was able to achieve included the Brown v Board of Education decision, which found that racial segregation in public schools was unconstitutional.

During his term, the doctrine of separation of church and state was given the power of law, criminal defendants were given the right to counsel even if they couldn’t afford an attorney, the press was unshackled from malicious libel lawsuits, “Miranda” was enshrined in law, the “one man, one vote” tenet was upheld. Countless other decisions changed American society and its understanding of what government could achieve to improve the lives of all people. 
He did it all without an Ivy League degree and without spending one hour as a federal judicial clerk or federal judge before ascending to the bench.

It really has to make us ask why in 2022, instead of looking for bridge-builders and men and women who can assemble coalitions to advance the cause of civil rights, equality and social justice, we are so focused on the eight schools in the U.S. (out of about 3,000) that are “Ivy League.” We would, I submit, be a lot better off with more Earl Warrens and a lot fewer (make that zero) Scalias, Alitos, Thomases and Kavanaughs.

From where I’m sitting, the Ivy League requirement has led to a frightening back-pedaling on all the progress achieved by the man from the University of California when it comes to social justice and the power dynamic between corporations and citizens.

Vincent Scala is a former Bronx Assistant District Attorney. He is currently a criminal-defense attorney in New York City and its suburbs.