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A Funny (Yes, Funny) Look at Diversity and the Supreme Court

By Ashby Jones

You don’t read the words “Supreme Court” and “funny” in the same sentence all that often, mostly because outside of the occasional incredibly nerdy joke uttered from one of the justices from the bench, the court isn’t funny, doesn’t wanna be funny, doesn’t try to be funny. And for that reason, outside the occasional Onion quip (Genie Grants Scalia Strict Constructionist Interpretation of Wish), writing about the Supreme Court isn’t typically of the gut-busting variety.

For that reason, we’ve got to give some props to George Washington law’s Orin Kerr, who recently offered up this piece on, well, another way to look at diversity and the Supreme Court. On three of the leading candidates rumored to be on President Obama’s short list, Elena Kagan, Diane Wood and Merrick Garland, Kerr writes, at the Volokh Conspiracy:

No matter who he picks [of the three], his selection is likely to break down some major barriers.

. . . 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.

You smiling yet? Okay, we’ll give you a little more:

No matter who he chooses, Obama will continue to break new ground. . . . 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).

He concludes: “Whoever Obama picks, I think it's clear that Obama faces a major choice and that his selection will be a historic occasion.”

Good stuff. But of course there’s a serious point here — that the current court is comprised of folks whose career experience is very, very similar. Another takeaway, which we’ve mentioned before: If you don’t ace your first-semester exams at a top law school, you’re probably not going to clerk on the Supreme Court or for a high-powered appellate judge like Henry Friendly. Nor are you likely to one day teach at Harvard or Chicago law. Nor are you likely to yourself become a Supreme Court justice someday. Not that it’s impossible, of course. We’re just sayin’.

Full post as published by Law Blog - WSJ.com on April 13, 2010 (boomark / email).