NEW YORK — When it comes to choosing a Supreme Court nominee, the Constitution doesn't include any checklist for qualifications. No guidance on age, birthplace or education.
"What should matter is your approach to judging and whether you are going to interpret the law with fidelity and apply it equally to all people," said John Malcolm, who oversees the Heritage Foundation's effort to increase understanding of the Constitution and the rule of law.
Still, most high court resumes include an unspoken qualification, and that includes nominee Neil Gorsuch.
Ivy League Dominates SCOTUS
Harvard and Yale graduates dominate the Supreme Court now and have a history of doing so. That raises questions about whether having a diploma from one of that nation's top two law schools is a prerequisite for the job.
"These are two excellent law schools and graduates from those law schools tend to go on and have distinguished careers," Malcolm said.
Last year he wrote about the Supreme Court vacancy and suggested eight candidates to replace Antonin Scalia. It was a diverse list – including names from a wide range of law schools and career paths.
"I think that the President should cast a wide net in terms of looking for qualified men and women," Malcolm explained.
Five of his recommendations ended up on President Trump's short list. But in the end, he nominated Gorsuch – a Harvard grad who, if confirmed, continues the Ivy League domination.
Some question whether such an elite group of individuals can represent the American people, since they have little in common with them.
Malcolm says yes, primarily because they're meant to reflect the Constitution, not the public.
"It's not critical to the task of judging, if what you're doing is trying to figure out a law's meaning," Malcolm said.
But author Nicholas Lemann says judges often bring with them more than just a knowledge of the Constitution.
"The Justices are very smart people and their official job is to interpret the Constitution. So in theory it's a technical job. But in practice people bring life experience to it, ideological inclinations," Lemann said.
Lemann also points out that even when disagreeing, current Justices often think, write and reason in similar ways because of their academic cultures.
Will Trump Break the Ivy League Trend?
In order to find a different culture, we would need to go back to 1981 when President Ronald Reagan nominated Sandra Day O'Connor – a graduate of Stanford. But since then, it's been all Harvard and Yale.
Lemann says this is because the cycle of Ivy League domination is self-perpetuating.
"It's a kind of enclosed world where everyone has a resume that looks pretty much the same, and so they tend to look for people like themselves to replenish the ranks," Lemann said.
In fact, judges pretty much travel a similar path to make it to the high court.
First, you would get a degree from only Harvard or Yale. Your next stop would be as a law clerk, followed by time in government service – like at a U.S. Attorney's office. Follow that up with a stint teaching at a prestigious law school and finally work as a lower court federal judge.
It's best to avoid taking a job at political organizations like the ACLU or as a legal aid lawyer.
Ruth Bader Ginsburg worked as a women's rights lawyer for the ACLU before her nomination to the federal bench. In 2011 she said that "ACLU connection would probably disqualify" her if she were put before the Supreme Court today.
No Justices from America's Heartland
Justice Clarence Thomas pointed out that no member of the Supreme Court comes from the heartland of America.
Lemann says judges with impeccable backgrounds and uncontroversial careers are more likely to sail through the Senate.
"It seems that, that's why President Trump picked Neil Gorsuch to be his first Supreme Court nominee, it's not specifically that he went to an Ivy League school, but more that he would have any easy time in the confirmation process," Lemann said.
But the Ivy League trend could be coming to an end.
Donald Trump could likely appoint at least one more justice during his presidency and he could choose one of the other finalists from his recent selection process:
- Judge William Pryor, who got his law degree from Tulane University in Louisiana;
- Judge Thomas Hardiman, whose law degree comes from Georgetown University in Washington, DC.
Either of those choices, or possibly even another, could give the Supreme Court a new diversity of experience, bringing in a justice from outside the halls of Harvard or Yale and from a different part of America.