Osler's Razor

I just went back (for the first time) and looked over the transcript from the CNN interview on May 10. I'm incredibly self-conscious and can't stand to see myself on TV, so I rarely look at the clips, but there was something in the transcript (pasted in below) that I really can't believe I said:

And we have got three more Ivy Leaguers joining us now, Yale School lecturer and former "New York Times" Supreme Court reporter Linda Greenhouse, CNN senior legal analyst Jeffrey Toobin. He is the author of "The Nine: Inside the Secret World of the Supreme Court." And, for the record, he is also a friend of Kagan's. And also with us, Baylor Law professor Mark Osler -- or Osler, rather -- who went to Yale.

Mark, let's start with you.

The president, as we said, said that, with Kagan on court, it would be more representative of the United States as a whole. Senator John Cornyn, though, on the Republican side, said: "Kagan has spent her entire professional career in Harvard Square, Hyde Park, and the D.C. Beltway. These are not places where one learns how ordinary people live."

What do you think? Is she reflective of America? And is the Supreme Court reflective of America at large?

MARK OSLER, BAYLOR LAW PROFESSOR: Well, President Obama I think clearly was talking in terms of gender, that Elena Kagan is going to make the court look more like America in terms of gender. That leaves a lot of other issues, however, that we still lack of certain diversity.

And what Senator Cornyn points to is one of them, that we have that large swathe of country in the middle that is not going to have their views reflected perhaps on the court in a way it might be if there was a justice from that area.

ROBERTS: Linda Greenhouse, the fact that there will be no Protestants on the court if Elena Kagan is confirmed for the first time in history, do you think that makes a difference?

LINDA GREENHOUSE, YALE LAW PROFESSOR: Well, what's interesting to me about that is that nobody much seems to care. There was a poll out the other day, and people just shrugged off what a few years ago would have really been a quite amazing development.

For years, there was a Jewish seat, so-called, on the court for one Jewish justice. Justice Brennan, at least through a chunk of his tenure, was the only Catholic on the court. And it's a reflection, I think, of those things that become salient to the public and then kind of fade from importance as the country progresses.

ROBERTS: You know, as we saw in the figures there from the Gallup poll, 66 percent of people asked say it doesn't really matter if he nominates a Protestants.

What do you think, Jeff Toobin?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, membership on the Supreme Court always reflects the political controversies of the day.

In the early days of the republic, regional differences -- in the period leading up to the Civil War, you had to have a certain number of Southern justices, Northern justices, Western justices. No one cares what state they're from now.

Later, when we had immigration, you had the Catholic seat, the Jewish seat, then, of course, 1965, the first African-American, Thurgood Marshall, 1981, the first woman, Sandra Day O'Connor, last year, the first Hispanic.

Those are the landmarks that matter now. We are in an ideological age. George Bush did not nominate Samuel Alito and John Roberts because they're Catholic. He nominated them because they're conservative. Same with Obama. He nominated Sotomayor and Kagan because they share his politics. That's why they're going on the court.

ROBERTS: And what about law school, Mark Osler? Does that matter? With all of these justices having either gone to Harvard or Yale, there are a lot of other good law schools across the country. What does the centralization around these two Ivy League schools mean for the Supreme Court?

OSLER: Well, there are a lot of other good law schools in the country. I teach at one of them.

(LAUGHTER)

OSLER: Having gone to Yale, I can tell you that there was something there. I remember our tests often seemed to be asked from the perspective of, "you're an omniscient God. How would you structure the law?"

And that's not the approach that many other law schools have. There, the training is much more rooted in real lives and political realities and the realities that come with the lives of litigants. And so there is a different perspective that might be more reflected if we had diversity in terms of background of law school.

(CROSSTALK)

TOOBIN: I don't know if it's diversity or not, but I went to Harvard. And I was never told I was an omniscient God.

(LAUGHTER)

TOOBIN: I have never been told that in my life. I'm waiting for this.

GREENHOUSE: Well, there you go.

TOOBIN: I'm waiting for that. But...

OSLER: I thought I told you that just this morning when...(CROSSTALK)

TOOBIN: Well, it was too early.

ROBERTS: Linda Greenhouse, what do you think, Linda? Does the concentration of these two schools and their hallowed halls of law make a difference in terms of the perspective of the court?

GREENHOUSE: Well, I think it may tell us something about the networks that send people into the great, you know, mentioning up above us as to people that are on these kinds of short lists.

You know, one thing that is interesting about the current crop of justices, a number of them -- and Elena Kagan, assuming she's confirmed, will be one of them -- have been Supreme Court law clerks. Now, that's a much more exclusive club than the club of graduates of Yale and Harvard Law School. TOOBIN: And also you have to factor that so many of the justices are former judges. And graduates of fancy law schools tend to become that.

In the old days, when you had justices like Hugo Black from Alabama, and Earl Warren from California, and Robert Jackson from New York, who didn't even go to law school at all, that is -- it reflects how the qualifications game has changed.

And I think it's too bad, because it would be better to have occupational and background diversity, not just racial and gender diversity on...

(CROSSTALK)

ROBERTS: All right, well...

GREENHOUSE: Well, there is the diversity. I mean, Elena Kagan will be the only one who has never been a judge.

ROBERTS: Yes.

GREENHOUSE: So, that's diverse.

TOOBIN: That's a change.

ROBERTS: Yes, since William Rehnquist in 1972.

He rose to a fairly prominent position.

(CROSSTALK)

TOOBIN: You know, you didn't hear conservatives complaining about Rehnquist then.

(LAUGHTER)

TOOBIN: And it was funny. That line about how never left the beltway, John Roberts has never had a job outside Washington, and he seems pretty satisfactory to most conservatives. So, you know, this is politics.

ROBERTS: Many statements suit a political purpose, don't they?

Linda Greenhouse, Mark Osler, and the omniscient God, Jeffrey Toobin, thank you for joining us tonight.

WHAT! Was I intimating that Jeffrey Toobin and I were having some kind of conversation over breakfast??? And then he responds that it was "too early?" Oh, man. No wonder Katie Couric is screening my calls.