I think it is terribly disappointing that we keep getting these Ivy League judges on the Supreme Court. Sure, Kagan has no "bench" experience, so in that aspect she is diverse. She is also female, which may be needed. But, she is still what at least 7 out of the other 8 are on the court: legal intellectuals. Frankly, I would have liked to have seen (and would like to see in the future) non-intellectuals grace the halls of the court again. There used to be a time when one did not have to go to an Ivy league law school to be on the court. Now, it is a prerequisite. And, I can't think of a nominee that would be a bigger intellectual than Kagan: law prof turned Harvard Law School Dean. But, I don't know the woman, so, maybe I'm wrong.

-- MatthewZorn - 13 May 2010

Matt - Can you explain a little more what you see as the problem with having ivy league or intellectual justices? Do you think that there's something wrong with having too many of any of one "type" or justice, or something wrong with a sort of blind adherence to a prerequisite of an ivy league degree - if that's what's happening - or maybe something else? If it's the former, what do you see as the downside of having this kind of a court?

-- JessicaHallett - 13 May 2010

I thought this article today in the Times was great. I liked this quote about Marshall's judicial philosophy which apparently Kagan didn't really buy (perhaps due to her very different background?):

But the case Justice Marshall cared about the most that year, she wrote, was the school bus dispute in which she had trouble justifying his dissent. The final draft seems to implicitly acknowledge that his vote rested less on legal doctrine than on his notion of social justice.

The case, it says, asked “whether a state may discriminate against the poor in providing access to education,” adding: “I regard this question as one of great urgency. As I have stated on prior occasions, proper analysis of equal protection claims depends less on choosing the formal label under which the claim should be reviewed than upon identifying and carefully analyzing the real interests at stake.”

-- DevinMcDougall - 13 May 2010

@Devin, Thanks for linking the NYTimes article, it was a great read outlining the differences between Kagan and a legal giant. I think that one of the issues that many have with justices being drawn from the intelligentsia is that they view the law in a very technocratic way. The quote from Marshall that struck me was his explanation of jurisprudence as “You do what you think is right and let the law catch up.” Although every citizen will not agree with a justice's ideas of what is right, at least they will be able to understand the motivations and arguments that the High Court uses in validating or striking down laws. When assessment of the law is steeped in technocratic bullshit, it not only makes it difficult for American citizens to understand the issues at stake, it also (at least I believe) prevents the Court from understanding the ramifications of their decisions. Justices should certainly be intelligent and have strong academic credentials, but I think there is a legitimate fear that they are becoming 9 bureaucrats rather than 9 wise men (and women).

Also, anyone else wondering how many times Justice Marshall called Eben a "knucklehead?"

-- TaylorMcGowan - 13 May 2010