I sort of slept on this...I'll start with my main 2

Critique 1: The author, in my mind, overestimates the meritocracy of the system. Now that everyone has received their grades back in many of their classes, and seen how exam prep and knowledge correlates with grades, maybe we can see the point--there is a good deal of random luck involved. Even if one does suppose that getting top-grades is not luck, why the hell does the ability to ace a 4 page issue spotter make you qualified for a Supreme Court seat. Oh wait, it doesn't.

Of course, there is more to excelling than 1L grades. But within law school, 1L grades are so influential its just hard to ignore them and in my mind inflicts a devastating blow on anyone who claims "law school success" is equivalent to "knows how to be a good judge."

The other argument against "eliteness" on the meritocracy front is that while Harvard/Yale/Stanford on down house the best and the brightest, the next 50 schools all contain equally capable candidates. In my mind, a top 10% student at Harvard will be able to exercise the same level of legal analysis as the top student at say, Montana or Florida. Which leads me to #2...

Critique 2: Being a justice requires competent legal analysis, not brilliance. Most of all, a Supreme Court justice should be just and fair. And, I see no evidence that Harvard students have any greater notion of fairness than a Georgetown student. Of course, this point is moot if you are of the school of "the law leads a person to the correct outcome." Of course, only the most delusional and ignorant believe that constitutional law is based on a set of formal rules and that the rules dictate the outcome. This has it backwards--the outcomes determine the rules. As such, a person who can perform a brilliant analysis is only better insomuch as that person can disguise the outcomes through opaque recitations of doctrine. There is no evidence to indicate that Harvard alums are better a judging, i.e., applying law to fact.

My instincts, though, tell me that Kagan is a person who may lose the forest through the trees. This (http://blogs.edweek.org/edweek/school_law/2010/05/marshall_kagan_a_knucklehead_o.html) sort of solidifies this opinion. Of course, she may have changed.

-- MatthewZorn - 16 Jun 2010