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Elena Kagan and the case for an elitist Supreme Court

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These arguments were taken to their absurd conclusion in the New York State constitutional ratification convention in 1788.

As one Federalist wrote about his Anti-Federalist opponents, “the gentleman, sensible of the weakness of this reasoning, is obliged to fortify it by having recourse to the phantom aristocracy.”

If government were not to be populated by citizens drawn from the ranks of “the wise, the learned, and those eminent for their talents or great virtues,” who would be fit to serve? The most famous, or perhaps infamous, invocation of this Anti-Federalist idea in modern American politics occurred when Richard Nixon nominated Judge G. Harrold Carswell of Tallahassee, Fla., to the Supreme Court in 1970.

In response to attacks on Carswell’s qualifications, US Sen. Roman Hruska of Nebraska rose to reassert the Anti-Federalist vision of politics. “Even if he were mediocre,’’ he asserted, “there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises, Frankfurters and Cardozos.’’

The Federalist Founders, it is important to recall, were drawn from a very small elite. They were champions of the ideal of natural aristocracy. Indeed, the very best among them were emblems of this ideal.

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