Legal Commentary

Obama?s Diverse Shortlist

By Orin Kerr

With Justice Stevens having announced his retirement, all eyes now turn to President Obama?s purported short list: Elena Kagan, Merrick Garland, and Diane Wood. Obama will have a tough choice, as he is picking from three very different candidates. No matter who he picks, his selection is likely to break down some major barriers.

First, consider the broad range of choices Obama faces. His shortlist consists of former law clerks to a wide range of the liberal Justices of the 1970s and 1980s. Obama must choose between a Brennan clerk (Garland), a Marshall clerk (Kagan), and a Blackmun clerk (Wood). Further, the shortlisters differ dramatically in that they had different high-level positions in the Clinton Administration. Will Obama pick the former Deputy Assistant Attorney General for the Criminal Division (Garland), the former Deputy Assistant Attorney General for the Antitrust Division (Wood), or the former Associate White House Counsel (Kagan)?

Even if Obama decides on a former academic, he has to pick which kind of resume he wants. For example, does he pick the woman who was a full-time law professor at the University of Chicago from 1981 to 1993 (Wood)? Or does he pick the woman who was a full-time law professor at the University of Chicago from 1991 to 1995 (Kagan)? Obviously, these are big choices.

No matter who he chooses, Obama will continue to break new ground, or at least help bolster some of the low numbers of people of certain arguably underrepresented backgrounds on the current Court. For example, Elena Kagan would become only the second former Harvard professor presently on the Court (joining Justice Breyer). Either Kagan or Wood would be only the second Chicago professor (joining Justice Scalia). Further, Merrick Garland would be only the second Justice on the Court who went to Harvard College; then Harvard Law School; then clerked for Henry Friendly; then clerked at the Supreme Court; and then worked at DOJ and was a partner at a big DC law firm before serving on the DC Circuit (joining Chief Justice Roberts).

Elena Kagan would also bring notable educational diversity to the Court. Kagan would be the very first Justice ever to have attended Princeton and then Harvard Law. Obviously, that would be a major break after two consecutive nominees who had attended Princeton and then Yale Law (Justices Alito and Sotomayor). Whoever Obama picks, I think it?s clear that Obama faces a major choice and that his selection will be a historic occasion.