I don’t think President Obama should have nominated Elena Kagan to the Supreme Court.

Don’t get me wrong; It’s not that I think she’s too conservative. That would be the granola/Birkenstock wing of the Democratic Party.

And it’s certainly not because I think she’s too liberal. That would be nuts.

I’m against her because she went to Harvard.

Do you realize that if she is confirmed, everybody on the Supreme Court will be a product of either Harvard or Yale? All nine of them.

That’s ridiculous. I know, they’re both supposed to be really good schools but, really, they’re not that good. To those who think they are I have but two words: George Bush. He graduated from Yale and got an MBA from Harvard. If that’s an example of the kind of minds those institutions of higher learning turn out, I’d rather take my chances with a graduate from the Oelwein (Iowa) School of Law and Storm Door Technology.

And what about Michigan, Wisconsin, Cal-Berkeley, Duke, or Texas? You couldn’t find a graduate of one of those places who is fit to sit on our highest court? There are dozens of good law schools in this country. Why fill the Supreme Court with graduates of only two of them?

It’s institutional nepotism, is what it is. Obama went to Harvard and the three presidents before him all went to Yale. They think you shouldn’t be on the Court unless you know the secret Yale-Harvard handshake.

I don’t. I believe in diversity.

Not ethnic diversity so much; I really don’t care much whether a justice is of Hispanic, Italian, or Latvian pedigree. I don’t even care much about their religion, so long as they don’t take it too seriously. (It is the “deeply religious” one must avoid at all costs. Whatever the religion–Muslim, Catholic, Protestant, or Jewish–its deeply religious practitioners would as soon burn you at the stake as look at you.)

No, what I’m talking about is intellectual diversity. I’d like to see a Court whose members offer differing perspectives (four of the current members, counting Kagan, grew up in New York City), who represent various philosophical universes.

What would be wrong with having an atheist on the Court, or at least an agnostic? I think he or she would be at least as qualified to judge issues of the separation of church and state as people who grew up religious.

Same with abortion. Why leave the question to a Court whose majority is instructed by their church that abortion is murder?

And don’t tell me that intellectual diversity doesn’t make any difference, because all the justices should be doing is executing the text of the Constitution without regard to their personal views. Strict constructionists, they call themselves.

Strict constructionists, my foot: There’s no such thing, certainly not among the gang who stepped into the Florida election in 2000 and handed victory to George Bush in a decision so blatantly partisan that they said it shouldn’t be used as precedent. Everybody is a judicial activist; it’s just a question of which way their activism rolls.

If I were picking a Supreme Court nominee I’d choose one who:

  1. Went to a good school west of the Hudson River.
  2. Had, at some time in his or her life, worked for tips. It is a great experience for learning about human nature.
  3. Possessed a sense of humor. I don’t expect a justice to do standup, mind you, but it would be nice to have one with a sense of irony.
  4. Was a skeptic, but not a cynic. The former questions everything; the latter rejects it out of hand.
  5. Would under no circumstances sign an opinion, then say it should not be used as precedent. Setting precedent is what the Supreme Court does. It’s why it exists.

Having said all of that, I’d probably vote for Kagan, were I a senator. She’s the best we can get, given the system we’ve got.

OtherWords columnist Donald Kaul lives in Ann Arbor, Michigan.

Get more news like this, directly in your inbox.

Subscribe to our newsletter.