I don’t usually publish on the weekends (and I’m likely off-topic), but there’s an editorial in the Washington Post today titled “Why elites do belong on the Supreme Court“.  It’s written by Christopher Edley, Jr., the Dean of Berkeley Law School.

Generally speaking, Dean Edley argues that it’s a good thing our United States Supreme Court is now completely dominated by Harvard and Yale law graduates.  I couldn’t disagree more.  In fact, I believe his views represent arrogance of the worst sort.  His editorial contains all kinds of presumptuous language, flawed logic and assumptions, and provides an excellent example of much that is wrong with academics in general and the culture of picking justices.

He writes: “[W]hat matters is intellectual horsepower, not office-chat charm. It is wisdom and analysis, not personal experiences. If a judge’s life is elite in the sense of excellence, that’s fine. In fact, that may be the point.”

According to Edley, if the Harvard and Yale law schools think a person is excellent, then that person must actually be excellent because they’ve demonstrated the proper “intellectual horsepower”.  I disagree.  All this person has necessarily demonstrated is that they are one specific type of achiever.  These students took the right classes, did the right things, and knew the right people.  Is it anything shocking to admit that they probably came from a privileged family?  The law admissions process is essentially a filter for personality and mindset.  It rewards high undergraduate grades and a high LSAT score.  It’s no secret that getting good grades in college is largely a process of learning to parrot and regurgitate knowledge back to your professors.  I don’t think that skill is useful for a Supreme Court Justice.  Likewise, I have no faith that a high standardized test score is any accurate predictor of whether someone will make a “good” Associate Justice – whatever that means.

Edley poses the question about nominee selection: “Do you want someone like you or someone better than you?”  The obvious implication is that Harvard and Yale graduates are “someone better than you.”  This disturbing attitude is entirely too prevalent in academia and government.  Furthermore, I find it literally dangerous to my idea of democracy when anyone spreads the gospel that government officials may be somehow better than ordinary citizens.  I worry about a natural tendency for these officials to group themselves with others who are “better than you” and forget entirely what it’s like to be the guy behind the grocery’s deli counter.  I’m concerned that when it comes time for these officials to review how “someone better than you” can treat “you”, it might not go so well for “you”.

I disagree that letting in a few physics major underwear models or single-parent firefighter medievalists significantly changes the mix.  Almost by definition, the process often excludes creative or critical thinkers.  There are many brilliant students who might have gotten B’s instead of A’s because they sidetracked into thoughts or ideas that their professors considered too unusual or different.  Or maybe they questioned a professor’s opinion or viewpoint.  According to Edley, professors are “someone better than you” – and you should listen to them.  I’m not sure I’m comfortable with that.

I would suggest that Edley’s reference to the military’s personnel system as a shining example was simply a mistake – it could be argued that the military is one of the least meritocratic institutions in America.  One could say that military advancement is often had by just sticking around, doing what you’re told, knowing the right people, and not making a fuss.  History is littered with less-than-brilliant admirals and generals.  At the very least, the armed forces has little reputation for rewarding creativity or critical thinking.

I note that Edley says he was a Harvard professor for 20+ years – which clouds his opinion with the worst sort of self-congratulatory back-patting.  Is he suggesting that he, too, is “excellent” and has “intellectual horsepower” because Harvard picked him?  Is he suggesting that he has a right to tell us who does and doesn’t have “uncommon smarts” because he, too, was at Harvard?  How circular and arrogant is this argument?

Edley also writes that, “[a]t every turn [Kagan] has excelled in a meritocratic system, one that is selective yet far more open than in generations past.”  This makes several assumptions about the fairness of the “meritocratic system” that I’m uncomfortable with.  I’m not sure almost any system operates completely on merit, but I’m sure the answers would vary by who you ask.  If you asked Edley, Kagan, and others on top of the system, I’m sure they would tell you that the system is great.  But you’d probably get different responses from people who couldn’t go to Harvard or Yale for one reason or another.  It’s like asking the guys in prison whether the criminal justice system works.  Finally, am I supposed to feel comfortable with Edley’s vague claim that the system is “far more open”?  Openness isn’t all about letting in 51% women and 10% minorities.

Maybe Edley’s most disturbing statement is: “At the Supreme Court level, it’s all about finding oracles for Olympus.”  Do I even have to attack the underlying assumptions behind calling these citizens “oracles for Olympus”?  Are Harvard and Yale graduates gods?  Are our Justices gods?  I have to ask: Were they gods before they were confirmed or do they only become gods afterwards?  I thought our American philosophy of government discouraged exaltation of our government officials in this way.  Judges and justices – even if they’re “better than you” – do not communicate with gods in a way that mere mortals cannot.  Edley’s apparent belief that these people might bring down the laws from somewhere elevated is outrageous and completely out-of-touch.

I don’t understand is why there’s not more uproar about this.  Are Harvard and Yale graduates really that much better than anyone else?  I doubt it – and we shouldn’t let anyone convince us that they are “somebody better than you”.  Does anyone else in America feel inadequately represented by a Supreme Court composed entirely of Jews and Catholics, all attenders of Harvard and Yale, and primarily from New York or California?  This kind of narrow monopoly on who can be considered “elite” is bad for the country.

I debated posting this here, because it doesn’t appear obviously relevant to a forum which mostly focuses on arts and creativity.  But it’s also a blog about Birmingham, Alabama – a city that’s often told it’s inferior.  And I also often encourage everyday people to pursue whatever creativity you possess – directly in the face of anyone who might tell you that you shouldn’t be singing, painting, making music, or dancing.  Don’t abandon any field, creative or otherwise, to self-selected “experts”.

I saw Up In the Air a while back, but I keep thinking back on it.  Just for fun, here’s a snippet of the dialogue that I thought was pretty terrific.

***

Natalie – I thought I’d be engaged by now.  (catches herself)  No offense.

Alex – It’s alright.
Ryan – None taken.

Natalie – When I was sixteen, I thought by twenty three, I would be married, maybe have a kid…  Corner office by day, entertaining by night.  I was supposed to be driving a Grand Cherokee by now.

Alex – Life can underwhelm you that way.

Natalie – Now I have my sights on twenty nine, because thirty is just way too… apocalyptic.  I mean, where did you think you’d be by…  (she catches herself, having no idea how old Alex is)

Alex – It doesn’t work that way.
Ryan – At a certain point, you stop with the deadlines.
Alex – They can be a little counterproductive.

Natalie – I don’t want to say anything that’s… anti-feminist.  I mean, I really appreciate everything your generation did for me.

Alex – (my generation?)  It was our pleasure.

Natalie – But sometimes it feels like no matter how much success I have, it all won’t matter until I find the right guy.

Alex – You really thought this guy was the one.

Natalie – Yeah, I guess.  I don’t know.  I could have made it work.  He just really fit the bill.

Ryan – The bill?

Natalie – My type.  You know, white collar.  College grad.  Loves dogs.  Likes funny movies.  Six foot one.  Brown hair.  Kind eyes.  Works in finance but is Outdoorsy, you know, on the weekends.  (we think she’s done)  I always imagined he’d have a single syllable name like Matt or John or… Dave.  In a perfect world, he drives a Four Runner and the only thing he loves more than me is his golden lab.  Oh… and a nice smile.  (back to Alex and Ryan)  How about you?  (This catches both Alex and Ryan off guard.)

Ryan – I’m not sure if…

Natalie – I meant Alex…

Ryan – Right.

Alex – Huh, let me think for a sec.  (mulls it over)  Well, by the time you’re thirty four, all the physical requirements are pretty much out the window.  I mean you secretly pray he’ll be taller than you.  (smiles)  Not an asshole would be nice?  Just someone who enjoys my company.  Comes from a good family – You don’t think about that when you’re younger.  (thinking)  Wants kids…  Likes kids.   Wants kids.  Healthy enough to play catch with his future son one day.  (We can tell Ryan is taking a serious interest in this.)  Please let him earn more than I do.  That doesn’t make sense now, but believe me, it will one day.  Otherwise it’s just a recipe for disaster.  (reaching)  Hopefully some hair on his head…?  But it’s not exactly a deal-breaker anymore.  Nice smile…  Yep, a nice smile just might do it.  (Looks to Ryan.  He has a nice smile.)

Natalie – Wow.  That was depressing. . . . I don’t mind being married to my career, and I don’t expect it to hold me in bed as I fall asleep.  (looks up)  I just don’t want to settle.

Alex – You’re young.  Right now you see settling as some sort of failure.

Natalie – It is.  By definition.

Alex – Don’t worry, by the time someone is right for you, it won’t feel like settling…  And the only person left to judge you will be the twenty four year old girl with a target on your back.

This is not likely of any general interest, but the Supreme Court just released its important Citizens United v. FEC opinion.  It discusses tensions between democratic elections and the First Amendment.  As a citizen, a writer, and an attorney, I take special note of those topics.  I also happen to respect and agree with Justice John Paul Stevens – he’s a good and readable writer – so here’s a selection of quotes from his dissenting opinion.

• “The Court’s ruling . . . dramatically enhances the role of corporations and unions . . . in determining who will hold public office.”
• “Starting today, corporations with large war chests to deploy on electioneering may find democratically elected bodies becoming much more attuned to their interests.”
• “Americans may be forgiven if they do not feel the Court has advanced the cause of self-government today.”
• “[I]n a functioning democracy the public must have faith that its representatives owe their positions to the people, not to the corporations with the deepest pockets.”
• “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.”
• “Pervading the Court’s analysis is the ominous image of a ‘categorical ban’ on corporate speech.  Indeed, the majority invokes the specter of a ‘ban’ on nearly every page of its opinion.  This characterization is highly misleading, and needs to be corrected.”
• “Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.”
• “Unlike our colleagues, [the Framers] had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.”
• “The word ‘soulless’ constantly recurs in debates over corporations. . . . Corporations, it was feared, could concentrate the worst urges of whole groups of men.  Thomas Jefferson famously fretted that corporations would subvert the Republic.”
• “The fact that corporations are different from human beings might seem to need no elaboration, except that the majority opinion almost completely elides it.”
• “It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.  Corporations help structure and facilitate the activities of human beings, to be sure, and their ‘personhood’ often serves as a useful legal fiction.  But they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.”
• “It is an interesting question ‘who’ is even speaking when a business corporation places an advertisement that endorses or attacks a particular candidate.  Presumably it is not the customers or employees, who typically have no say in such matters.  It cannot realistically be said to be the shareholders, who tend to be far removed from the day-to-day decisions of the firm and whose political preferences may be opaque to management.  Perhaps the officers or directors of the corporation have the best claim to be the ones speaking, except their fiduciary duties generally prohibit them from using corporate funds for personal ends.  Some individuals associated with the corporation must make the decision to place the ad, but the idea that these individuals are thereby fostering their self expression or cultivating their critical faculties is fanciful.”
• “Corporations, as a class, tend to be more attuned to the complexities of the legislative process and more directly affected by tax and appropriations measures that receive little public scrutiny; they also have vastly more money with which to try to buy access and votes.
• “In an age in which money and television ads are the coin of the campaign realm, it is hardly surprising that corporations deployed these ads to curry favor with, and to gain influence over, public officials.”
• “Corruption can take many forms.  Bribery may be the paradigm case.  But the difference between selling a vote and selling access is a matter of degree, not kind.  And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf.  Corruption operates along a spectrum, and the majority’s apparent belief that quid pro quo arrangements can be neatly demarcated from other improper influences does not accord with the theory or reality of politics.  It certainly does not accord with the record Congress developed . . . that stands as a remarkable testament to the energy and ingenuity with which corporations, unions, lobbyists, and politicians may go about scratching each other’s backs . . . .”
• “Corporate ‘domination’ of electioneering . . . can generate the impression that corporations dominate our democracy.  When citizens turn on their televisions and radios before an election and hear only corporate electioneering, they may lose faith in their capacity, as citizens, to influence public policy.  A Government captured by corporate interests, they may come to believe, will be neither responsive to their needs nor willing to give their views a fair hearing.”
• “To the extent that corporations are allowed to exert undue influence in electoral races, the speech of the eventual winners of those races may also be chilled.  Politicians who fear that a certain corporation can make or break their reelection chances may be cowed into silence about that corporation.”
• “The majority declares by fiat that the appearance of undue influence by high-spending corporations ‘will not cause the electorate to lose faith in our democracy.’  The electorate itself has consistently indicated otherwise, both in opinion polls . . . and in the laws its representatives have passed, and our colleagues have no basis for elevating their own optimism into a tenet of constitutional law.”

I, for one, welcome our new corporate overlords.