Democracy dies in the elitist networks created and maintained by lawyers. As students at Harvard Law School (“HLS”), we know that many perceive Harvard as epitomizing the legal elite—HLS is historically the most represented school on the Supreme Court and has a similarly outsized presence in the broader federal judiciary. The HLS website contends that “no law school has done more to shape law.” But HLS applauds power, regardless of how it is deployed. Rather than counting its trophies, HLS must reckon with the toxic culture of elitism it perpetuates—and the disastrous effects this culture has on the most vulnerable in our country.
The most recent example of problematic legal elitism is an op-ed by HLS professor Noah Feldman, arguing that Judge Amy Coney Barrett is qualified to be a Supreme Court Justice. In the op-ed, Professor Feldman focuses on Judge Barrett’s intellect and credentials, with little-to-no mention of her substantive view of the law. Being a smart, well-credentialed lawyer does not guarantee sound judgment or basic human decency. In short, Professor Feldman answered the questions no one is asking, and did anything but assure us that Judge Barrett is a commendable fit for the Supreme Court. The op-ed reinforces a cycle in which the upper echelon of the legal profession maintain influence by prioritizing elite credentials, rather than considering the profound impact that judges have on hundreds of millions of Americans.
Much of Professor Feldman’s op-ed focuses on Judge Barrett’s Supreme Court clerkship. A clerkship entails spending a year learning from and working closely with a judge. However, these positions, at the Supreme Court and the levels below, are not equally accessible. Certain law school professors, including Professor Feldman, have reputations for being clerkship gatekeepers. Students who develop close relationships with these professors gain a significant advantage—they are hand-picked to be recommended as clerks for elite judges. Broadly, these favored students are overwhelmingly white and male. While it is notable that Judge Barrett belongs to a minority cohort of female Supreme Court clerks, it is also important to point out that she was not the first in her family to go to law school. Clerkships are particularly inaccessible to first-generation law students, many of whom lack familiarity with the process compared to students like Judge Barrett who were raised by attorneys. Clerks are able to shape the perspectives of the nation’s most powerful judges and the law itself. To put it plainly: the composition of clerks matters.
Our organizations (the Harvard Chapters of the People’s Parity Project and American Constitution Society) work to recognize the privilege our education gives us and use our platforms for parity rather than power. It’s past time for everyone in the legal community—students, practitioners, and professors—to do the same. That means rethinking the reliance on elite credentials at the expense of their deleterious effects on our country.
Judge Barrett's participation in a White House event to celebrate her nomination, without wearing a mask or attempting to socially distance, calls her fitness for the bench into question. Such reckless disregard for the health of attendees and the employees and reporters working at this event— over two dozen of whom have now tested positive for coronavirus—evinces poor judgment. But even before September’s superspreader disaster, Judge Barrett’s record displayed a callous indifference to human life. Between 2011 and 2017, Judge Barrett gave five paid speeches sponsored by the far-right Alliance Defending Freedom. The organization, designated as a hate group by the Southern Poverty Law Center, supports re-criminalizing homosexuality and sterilizing trans people. A Justice should rebuke hate groups, not accept money from them.
More broadly, the democratic legitimacy of our judiciary is in peril—and in accepting President Trump’s nomination, Judge Barrett is complicit. Over the past few years, Mitch McConnell has expertly manipulated the composition of the courts “ to assert a political agenda he could not achieve at the ballot box.” After blocking dozens of President Obama’s judicial nominations, the Senate has pushed through hundreds of President Trump’s nominations, including two Supreme Court Justices. When Justice Antonin Scalia died nine months before the 2016 election, Senator McConnell blocked Judge Merrick Garland’s nomination hearing, using the impending election as a pretext for political obstruction. And in 2018, the GOP-controlled Senate failed to investigate Brett Kavanaugh’s fitness for office, pushing him onto the Court despite credible allegations of sexual assault and evidence of perjury.
Justice Barrett’s nomination comes as the election is already under way. The announcement came just 38 days before Nov. 3, at which point the electorate may rebuke both President Trump and the GOP more broadly. It is especially haunting that Senate Republicans have chosen to prioritize this brazen act for political gain over an effective response to the pandemic. As several GOP Senators, the President, and multiple associates announced their COVID-19 diagnoses, Senator McConnell halted almost all Senate legislative function, including on coronavirus relief. But he is moving forward with Judge Barrett’s nomination, putting more Senators’ health at risk in order to jam another far-right judge onto the Court. And Judge Barrett has not spoken a single word of condemnation.
Ultimately, this fight to save our Supreme Court is not about Judge Barrett. Nor would it be about Judge Barbara Lagoa, had President Trump nominated her instead. This fight is about preserving what is left of our democratic system. To do that, elite legal minds must stop privileging credentials and process over the concrete harms that their peers enact in positions of power.
Defending Judge Barrett’s nomination is not a politically neutral choice: it legitimizes conservatives’ attempt to control the Court for more than a generation through this anti-democratic power grab. In normalizing this takeover through their highly visible endorsements, elite lawyers obscure the stakes of this confirmation process and its threat to the judiciary’s institutional legitimacy. Professor Feldman may have chosen to do so because the shiny credentials he shares with jurists like Judge Barrett will shield him from the material consequences of her appointment. Yet the sterling lines on Judge Barrett’s resume will be cold comfort to those with the most to lose.
Beth Feldstein and Niki Rubin are Lead Organizers of the Harvard Law School chapter of the People’s Parity Project. Ross Svenson and Katie Cion are the President and Activism Co-Chair, respectively, of the Harvard Law School chapter of the American Constitution Society.
