Beyond 'smart'— Kavanaugh's credentials and the limits of intelligence

Beyond 'smart'— Kavanaugh's credentials and the limits of intelligence
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There is little doubt that Brett Kavanaugh is smart. But intelligence is hardly the most important characteristic we should look for in a perspective Supreme Court justice. Other traits — among them kindness, merit, and especially true empathy — ought to be front-and-center.

Sadly, elites tend to overemphasize intellectual might and neglect the human impact of prioritizing “smarts.” Professor Akhil Reed Amar, for example, gushed over Kavanaugh in a New York Times op-ed on Wednesday.

Amar agreed with President TrumpDonald John TrumpPapadopoulos on AG's new powers: 'Trump is now on the offense' Pelosi uses Trump to her advantage Mike Pence delivers West Point commencement address MORE that Kavanaugh has “impeccable credentials” and added praise for his “studiousness.” Amar’s employer, Yale Law School, similarly fawned over Kavanaugh in a press release that pulled together a star-studded (in the small pond that is the legal academy) set of endorsements. Dean Heather K. Gerken identified Kavanaugh as a “friend,” Professor Kate Stith called Kavanaugh’s judicial opinions “smart, thoughtful, and clear,” and according to Professor Abbe R. Gluck, “Kavanaugh is a true intellectual.”


The extent to which education — especially at elite schools — has become the ticket to the upper class, the emphasis on Kavanaugh’s intelligence makes sense. If there is a single shared trait that defines many students who attend Yale College, as Kavanaugh did it is probably intelligence.

One can, of course, quibble with such a characterization; after all, the true defining trait of most — again, not all — Ivy league students arguably is not so much intelligence as it is a privileged background.

The son of a judge who went to Georgetown Preparatory School, Kavanaugh likely felt right at home among his many classmates at Yale who were similarly fortunate to have been born on third base. But that is a quibble. I have no doubt that Kavanaugh is very smart, perhaps even smarter than the average Yale College and Yale Law School graduate. He even seems nice. But frankly who cares?

Don’t get me wrong, intelligence should be a prerequisite to serving on the highest court. Well-written, well-reasoned opinions and dissents are necessary for lower courts if they are to follow Supreme Court precedent and help the public understand the role and logic of the Court.

But how smart a nominee is should be the start of the conversation and hardly the basis for confirmation to the highest court of the land. As an Open letter from Yale Law Students, Alumni and Educators Regarding Brett Kavanaugh declares, “Judge Kavanaugh’s resume is certainly marked by prestige, groomed for exactly this nomination.

But degrees and clerkships should not be the only, or even the primary, credential for a Supreme Court appointment. A commitment to law and justice is.” The letter makes strong case against Kavanaugh (and against Yale’s press release and Amar’s letter-of-recommendation, I mean op-ed).

As someone who went to a long list of elite schools myself, including Yale, I understand the temptation to equate intelligence with worth. Standardized testing that begins in kindergarten and continues through the SAT or ACT, not to mention the LSAT, GRE, MCAT, or GMAT, tries to tell us that who we are can be boiled down to a single number or percentile score.

Grades contribute to this valuation and professors and students often find it all too easy to treat academic merit as general merit. But we should demand more of Supreme Court Justices than the ability to turn a clever phrase or find loopholes that fit their ideological commitments.

The legal profession, like all professions, is full of people out to show the world just how smart they are. Whether done through attacks from the bench during oral argument or through an endless series of “smart” comments or references cultural trivia during meetings, some people really want to appear smart. Others such as perhaps Kavanaugh are more genuinely intelligent in the conventional meaning of the word.

But far more important than ordinary intelligence is the sort of deep empathy that is not the product of an elite education so much as it is a melding of the heart and mind. There are many smart people.

There truly is not a real shortage of them. And there is not even a shortage of people who have strong credentials to serve on the Supreme Court. Kavanaugh perhaps did a better job than most checking every box, but many other people have similarly strong records of accomplishment.

What seems in short supply among elites, including Ivy league-educated elites, is empathy, the ability to imagine the lives of those impacted by the law. Based on his record, Kavanaugh’s appointment raises red flags among those concerned about protecting the most vulnerable.  

Recent decisions of the Supreme Court — such as the gutting of the Voting Rights Act and approval of the Muslim Ban — show the importance of prioritizing true empathy and the limits of intelligence and of even well written opinions.

Elections matter and it would be too much to ask President Trump to nominate another Justice Sotomayor; no offense RBG, but I think Sotomayor is taking on the empathetic and courageous role of Justice Thurgood Marshall in this Court. But hopefully we can at least look beyond how smart a nominee is and consider his or her true commitment to equal justice for all.

Ezra Rosser is a law professor at American University Washington College of Law. You can follow him on Twitter @EzraRosser.