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Miers' academic background draws scrutiny

WASHINGTON — The numbers are irrefutable, evidencing something beyond a trend and approaching a requirement.

Over the past 50 years, 20 of the 25 people nominated to the U.S. Supreme Court have graduated from the nation's elite law schools; either an Ivy League institution, Northwestern or Stanford.

Five current justices are graduates of Harvard Law School, a sixth attended there before graduating from Columbia Law School. The others are alums of the law schools at Yale, Northwestern and Stanford.

Now comes nominee Harriet Miers, holder of undergraduate and law degrees from Southern Methodist University, a fine Dallas institution generally ranked somewhere beneath the Ivys and Stanfords and Northwesterns.

At SMU, they couldn't be prouder.

"As a graduate of both our undergraduate program and our school of law, she brings honor to SMU through this nomination and through her distinguished legal career," SMU President R. Gerald Turner said when the appointment was announced.

Despite the hometown pride, some Miers backers, confronted by opposition from some conservatives, perceive an academic snobbery being trained on the nominee's lack of an elite education.

On "Meet the Press" this week, Miers backer Richard Land, president of the Southern Baptist Convention, said some of the conservative trepidation about Miers "has the scent and whiff of elitism about it."

"I'm a graduate of Princeton, and I just want to say you don't have to go to an Ivy League school to be on the Supreme Court," Land said.

Land's "whiff of elitism" comment echoed a phrase reportedly used by Ed Gillespie, the former GOP national chairman named by the White House to help shepherd Miers' nomination through the Senate, in a meeting with conservatives upset about the selection.

On Wednesday, the Family Research Council, a conservative group that has taken no position Miers, said charges of elitism lobbed against Miers' critics "may be doing more harm than good."

"Many of those who are criticizing this nomination would have favored any of a host of other candidates for the Supreme Court, including many women and graduates of non-Ivy League law schools," the council said in a statement also aimed at Miers' backers who have accused critics of sexism.

The council also noted it has backed high-profile Bush judicial appointees who attended law school at UCLA, Baylor, University of Mississippi and Tulane.

On the Democratic side, Senate Minority Leader Harry Reid of Nevada has come to Miers' academic defense.

"I don't want to denigrate in any way Ivy League schools," said Reid, a graduate of the George Washington University Law School, "but I think that that should not be a requirement to become a clerk or a judge."

Some conservatives aligned against Miers said they expect to be accused of elitism.

"But this is not about the Ivy League," columnist Charles Krauthammer wrote in a scathing criticism of Miers' nomination. "The issue is not the venue of Miers' constitutional scholarship, experience and engagement. The issue is their nonexistence."

And, Krauthammer wrote, "the Supreme Court is an elite institution. It is not one of the 'popular' branches of government."

Currently atop one of the popular branches of government is an Ivy Leaguer who likes to distance himself from the Ivy League. President Bush (whose wife Laura is an SMU alum) is a Yale (undergraduate) man and a Harvard (business school) man – as well as the product of a tony New England prep school. But, at crucial times, he has chosen to define himself by ignoring that pedigree.

In March 1999, while announcing his presidential exploratory team, Bush differentiated himself from his dad (a prep-school-and-Yale man) by talking about their grade schools.

"I went to Sam Houston Elementary School in Midland, Texas. And he went to Greenwich Country Day in Connecticut," said Bush, turning his back on the back-East sheepskins he picked up.

In May 2001, Bush was Yale's commencement speaker, a selection that brought considerable protest on a campus still cranky about the outcome of the 2000 election. Bush simultaneously embraced and distanced himself from his Ivy League pedigree.

"My life began a few blocks from here," said Bush, born in New Haven while his dad was a Yale student, "but I was raised in West Texas."

In West Texas, Bush's Ivy League pedigree was used as a negative against him in 1978. Former U.S. Rep. Kent Hance, now a Bush backer, recalled reminding voters about Bush's educational background and saying, 'Look, the problems we've got in America today, most of them came out of the so-called brains out of Harvard and Yale."

"That went well," Hance said of the tactic.

But Hance also said Bush had an effective counter.

"It played well if they hadn't met him," he said of painting Bush as an Ivy Leaguer. "If they met him he came across as a good ol' boy."

To this day, Bush — who was rejected by the University of Texas Law School — sometimes likes to fuel the anti-intellectual image hung on him by others and fostered by his penchant for mangling the language and taking the chain saw to brush on his ranch.

"Well, I think I'll go read a philosophical novel," Bush, trail mud splattered on his shirt, joked to reporters after a grueling bike ride on his ranch in August.

(Optional add ends)

By picking Miers, Bush has invited opposition accented by academic snobbery, Supreme Court observers say.

"She will run into that to some extent," said Henry J. Abraham, a Supreme Court expert at the University of Virginia. "I doubt it will be very important. And if that is pushed too hard you would have a congressional delegation coming out of Texas and raising Cain. But certainly there is an underlying snobbery."

David Garrow, a Supreme Court expert now at London's Cambridge University, predicted the SMU factor would be a non-factor in the confirmation process.

"I don't think where someone's law degree is from is necessarily a hindrance," Garrow said, adding, however, "There is an advantage to going to Harvard or Yale or Chicago."

"Within the world of Austin and (Bush's) growing up in Texas, SMU is more than perfectly respectable, It certainly is above, say, Baylor in that sense," Garrow said. "SMU may not quite be ranked by anybody with Duke, Vanderbilt, Emory or Tulane. But it is in that family even if not atop that family."

Garrow, who believes Miers will withdraw, sees Bush's selection of her as consistent with how previous presidents wound up picking nominees from elite institutions.

"It is personal connections and relationships. And if you look back to a Franklin Roosevelt, a John Kennedy, they were products of that elite world," Garrow said.

"It is not surprising in the least that a president from Texas would nominate an SMU graduate to the Supreme Court," Garrow said. "It would have been surprising for JFK."

Recent Texas presidents, however, have shown no penchant for picking Texans. Lyndon B. Johnson appointed Thurgood Marshall (Howard Law School) and Abe Fortas (Yale Law School), neither of whom had any ties to the state. George H.W. Bush selected David Souter (Harvard Law School) and Clarence Thomas (Yale Law School), two other lawyers with no links to Texas.

If confirmed, Miers would become the latest in a short list of justices from outside the realm of elite law schools. Chief Justice Warren Burger went to law school at night in St. Paul, Minn. Marshall's Howard University has long been a top school for blacks.

On the other end of the success spectrum is Charles Evans Whittaker, a 1924 graduate of the Kansas City School of Law (now the University of Missouri-Kansas City School of Law) and a 1957 appointee of President Eisenhower.

Whittaker resigned five years and a nervous breakdown after donning his high-court robe.

"He found decision-making excruciating and almost impossible," said a biography posted on the oyez.org Web site, a collection of Supreme Court information.

Ken Herman's e-mail address is kherman(at)coxnews.com