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.
Mark says:
I guess you had a pretty dull Saturday night if this is what you find entertaining.
[OK Comments: And you, too, Mark? ;-)]
April 11, 2010, 1:31 amNunzio says:
Judge Wood went to Texas Law School so I think she’s out of the running.
April 11, 2010, 1:33 amReplacing Justice Stevens « To dust you shall return says:
[...] than I could, my first reaction to seeing Obama’s possible SCOTUS replacements was just like Orin Kerr’s. It’s so good of Pres. Obama to be selecting such “diverse” candidates to fill [...]
April 11, 2010, 1:38 amMike McDougal says:
Orin, were you Obama, who would you pick?
April 11, 2010, 1:45 amAnonsters says:
Probably someone the real Obama wouldn’t.
April 11, 2010, 1:54 amTom Fliegler says:
Orin Kerr for SCOTUS
April 11, 2010, 1:57 amG. C. Andersen says:
Guess I am having a pretty dull Saturday night myself because because I read it. Hope it’s tongue in cheek – I can’t see much substantive difference among the three of them. Rumor has it that Wood carries the intellectual weight to spar meaningfully with Scalia. Otherwise, I guess Garland is the token white guy (who won’t get the nod) and they are just three liberal elite ideologues who went to the right schools, clerked for the right justices, and held the right jobs to suit this equally ideological President.
It will be interesting to see how whomever is nominated handles questions certain to come from Republicans concerning the constitutionality of the recently enacted healthcare legislation – unless she is allowed to avoid meaningful answers by resorting to the canard that she doesn’t comment on matters that are likely to come before the Court.
New ground? Nope. Increased intellectual firepower on the Court for the left? Possibly.
April 11, 2010, 2:12 amPendulum says:
Well, which of them has spent the longest portion of their career as a prosecutor?
I’ve come to believe there’s an unwritten law that no one who hasn’t worked as a prosecutor is competent to serve on an appellate court.
April 11, 2010, 2:38 amleo marvin says:
Obviously the post isn’t meant to be taken seriously — or at least not too seriously — but I wish there so little difference that I wouldn’t mind when Obama picks someone (I’m guessing Kagan) other than Wood.
April 11, 2010, 2:40 amAndrew says:
Looks like Lieutenant Colonel Terry Lakin will be available soon for work in a different branch of government, though he lacks the kind of pedigree to be found in Garland, Kagan, and Wood. :-) Oh, never mind, I forgot that the media has a blackout on him. Let’s pretend I never said anything about it.
Hey, I got an iPhone today. Those things are amazing!
April 11, 2010, 2:41 amOrin Kerr says:
For those wondering if I am serious, please note that the category of the post is “Humor.”
April 11, 2010, 2:43 amOpenVolokh says:
This is why Obama should pick Goodwin Liu instead of any of these three. Instead of these elitist eastern schools or the elitist University of Texas at Austin, Professor Liu attended a down-to-earth school in California known as Stanford for undergrad.
Let us recap all the reasons that Obama should choose Liu for the Supreme Court.
1.) Professor Goodwin Liu attended a humble school on the west coast for undergrad.
2.) Professor Goodwin Liu has never written a judicial decision with dicta in it!
3.) Rulings by future Justice Liu can be referred to as Goodwin’s Law.
4.) Professor Liu is only 39 compared to 59 for Diane Wood, 49 for Elena Kagan, and 57 for Merrick Garland.
5.) Ed Whelan really really hates Professor Goodwin Liu. He actually hates all of these candidates, but he hates Professor Liu the most. That makes him the best choice!
6.) Professor Liu would be the first Asian-American Supreme Court Justice.
It is obvious who should be nominated. Obama should really surprise everyone by nominating Professor Liu.
* Whatever he does, he should NOT nominate Merrick Garland. As everyone knows, Garland was the name of the original nemesis in Final Fantasy. Any President that would name someone who nominated someone with that name is taking us down a very reckless and dangerous path that would probably unleash the “power of discord” and the “Four Fiends of Chaos” upon us all!
April 11, 2010, 2:44 amOpenVolokh says:
I don’t care if you claim this is humor. We KNOW your serious. That is how sneaky you are, trying to disguise all your serious points as humor, and all your humorous points as seriousness. You are probably one of Garland’s minions!
April 11, 2010, 2:46 amAnonsters says:
I repeat my claim from an earlier thread:
OpenVolokh = Goodwin Liu.
April 11, 2010, 2:53 amAndrew says:
I just hope that, whatever Obama does, he looks primarily at features discernible below the neck, such as skin pigmentation, age, and gender. We all know that SCOTUS judges shoot from the hip and never use their brains anyway! :-)
By the way, OpenVolokh, Ed Whelan is absolutely right to hate the nomination of Goodwin Liu so much.
April 11, 2010, 2:57 amOpenVolokh says:
Another one of Garland’s minions trying to create discord!
April 11, 2010, 2:59 amAnonsters says:
Nah.
I’m more of a Wood minion. ;)
April 11, 2010, 3:00 amRon Potato says:
I ahd ah great night and i still foudn it funny!
April 11, 2010, 3:39 amOpenVolokh says:
This is funny! Mark is just obviously lacking in a sense of humor. =)
April 11, 2010, 4:25 amPerseus says:
I first thought that maybe Prof. Kerr had invited ‘Sarcastro’ to guest-blog. I found it amusing, but maybe it was because I was just grading exams.
April 11, 2010, 4:50 amrequired says:
well played.
April 11, 2010, 4:50 amD.O. says:
Three nominees in a short list? Is it how it’s done in legal profession? Or should we supplement a trite complaint about 15 second attention span with a relatively new invective of inability to hold mentally a list of more than 3 objects?
April 11, 2010, 5:11 amIna Pickle says:
I don’t know if it is funny or just sad, because it is true. If we want new, creative, and different thinking (oh yes, I just said that in connection with the LAW, and SCOTUS to boot), we need to start picking brains that were trained someplace different than Harvard, Yale, and Princeton.
With that said, I really like Elena Kagan. I appreciate Judge Wood’s brains, although I very frequently disagree with her. Considering the disrepute in which the Chicago School currently finds itself within economics, do we really want to ensconce that economic model (er, religion?) in the high court?
Yeah, sure. Change we can believe in.
April 11, 2010, 6:16 amStephen Lathrop says:
I’ve been thinking more and more that Obama’s time at the University of Chicago has quite a bit to do with his approach toward Wall Street, economic reform, and feeble economic stimulus. Obama bills himself as a pragmatist. Some people do that when they have ideology so baked in they don’t notice it. Given the Chicago connections, does anybody know how these nominees stack up on Law and Economics? Is it revealed truth to any of them? If so, that would be pretty depressing.
There is a larger point to notice here, I think, one that the Sotomayor appointment possibly illustrates. The notion of “liberal” or “progressive” politics has morphed over time under pressure from an increasingly corporatized political economy. The old notion that those terms have something to do with redistributional economics is increasingly replaced with an interpretation that makes those terms stand for diversity and identity politics—the preferred progressivism of corporations.
The nation seems to have arrived at a point where Obama can appoint an economic conservative and still expect broad credit (or blame) for a “progressive” appointment, just so long as the appointee is not a straight white male. I’d be fine with a gay, asian, woman progressive, just so long as the progressivism is about economics and not identity. A non-progressive, non-conservative, with a non-partisan judicial temperament would be even better. But that’s dreaming, right?
Thanks again, Justice Stevens. Well done.
April 11, 2010, 6:19 amchris says:
Kagan would actually be a major breakthrough as she is a semi-closeted lesbian, who would quite possibly be outed during the confirmation process. With the prospect of gay marriage cases coming before the court in coming years this might cause some fireworks.
April 11, 2010, 7:28 amRichard Riley says:
Funny. Very good post by Orin.
Drilling down to the serious point, look what happened the last time a president nominated somebody outside the Ivy/Stanford/Chicago academic/DOJ/biglaw axis – poor Harriet Miers got slaughtered, with the arrows coming from right, left and center.
I’d like to see some suggestions – maybe from our VC bloggers – for nominees with a little more truly diverse educational and career backgrounds.
April 11, 2010, 7:43 amEric Muller says:
Orin, all you’ve really done here is to list even more reasons why Obama should pick me.
April 11, 2010, 7:49 amS says:
Obviously, since this is the Northwestern Univ. Law School seat, to maintain diversity, the seat should go to another NULS alum. But given that Obama is a south-sider, he will he will probably go with the Morons, uh, Maroons.
April 11, 2010, 8:36 amWes says:
Richard Riley asks for suggestions: One name stands out above all the rest — Bart Stupak. Saginaw Valley with a degree in Criminal Justice, Cooley Law School, a decade of hands on law enforcement with the Michigan State Police, and 18 years as a Congressman. All this and still only 58. He would be an expert on legislative intent and an inspiration to all Americans.
He has experience and shown the ability to compromise that is so important when confronted with divisive issues, those points of policy and law likely to confront the Court. He is available and the President owes him one. What more could we ask for?
April 11, 2010, 8:53 ammikeyes says:
Who wants to bet that the nominee is none of those three?
April 11, 2010, 9:07 amSarcastro says:
OMG! Chicago!
April 11, 2010, 9:13 amAriel says:
Deval Patrick will be looking for a job soon.
April 11, 2010, 9:40 amMike S. says:
if it were up to me I’d look for a constitutional scholar who has never been to law school. Does anyone really believe that the kind of word games lawyers specialize in matters at that level? If legal analysis provided an answer, the case wouldn’t reach the SC in the first place.
April 11, 2010, 10:07 amHigh time we stopped having one branch of the government reserved exclusively for lawyers; there are enough of those in the other two branches as it is.
troll_dc2 says:
Mike S., are you in a humor mode too?
April 11, 2010, 10:17 amRichard W. Painter says:
Two of the people on the short list have extenisve experience on the Court of Appeals. One does not. Isn’t that the most important difference?
Where they went to school should not be relevant, although I do think it is important to avoid the perception that one must have a connection with certain law schools to be on the Court. Someone who at least spent the majority of his or her career somewhere other than an elite law school would be preferable.
Perhaps someone who got elected to public office in a state like Michigan would bring some understanding of how middle American thinks. Someone who is liberal — a lot more liberal than I am — and who can still get elected to office might be that much more qualified in this respect. It would, however, be a fight . . .
RWP
April 11, 2010, 10:21 amCliveStaples says:
OpenVolokh, explain again why we should care about the race of Obama’s nominee?
April 11, 2010, 10:22 amOpenVolokh says:
Because. Race is what matters. It is all about race.
Well, not all about race. Also Professor Liu isn’t named Garland. And everyone knows that Garland is the evil nemesis from the first Final Fantasy.
April 11, 2010, 10:26 amHelp me out says:
As someone who transferred from a second-tier school to a top-14 school, I would love to have someone explain the benefits of lowering the prestige bar for SCOTUS justices. The only differences I’ve seen are that the t14 professors are generally a little more competent, and the students are generally a little smarter. There isn’t a noticeably different philosophy in the lower-ranked schools that needs to be represented on SCOTUS (especially when most of the profs at the second-tier school are simply trying to mold themselves as someone who would fit in at a better school).
April 11, 2010, 10:27 amOmnominous says:
Wait, I may be a dumbass, but this post is aiming for facetiousness, amirite?
April 11, 2010, 10:28 amCliveStaples says:
A jurist’s prestige should follow from the quality of his knowledge, reasoning, and rhetoric…not from the name on his JD.
April 11, 2010, 10:34 amAnonsters says:
Russ Feingold for the Justice Stevens seat!
April 11, 2010, 10:38 amBob from Ohio says:
Yeah, but it actually points to the incredible small slice of lawyers who are even considered for S/C openings. I think this is a significant long term problem.
Diversity should mean more than just gender and race.
April 11, 2010, 11:12 amMax Power says:
Is there any actual evidence of this, outside of the fact that she is unmarried and not stereotypically feminine? Has this claim been made by any quasi-mainstream source? Has anyone who knows her personally stated this on the record? I don’t think it should matter at all with regard to her potential nomination, I should add, but I’m still curious.
April 11, 2010, 11:19 amgeokstr says:
Jeez, typical biased right-wing comment. Everybody knows that the much-sought after perfect diversity also includes differences in height, weight, and looks too.
April 11, 2010, 12:11 pmAnon21 says:
No, of course not. That doesn’t stop people from confidently asserting it as if it were established as true, though.
I think Orin has one good point mixed with some bad ones. There is no special need for diversity in terms of education or even very early (that is, clerkship) experience on SCOTUS. These institutions are elite, and it should not surprise us when our government ends up filled with people who are products of elite institutions; nor should it be a cause of concern. What would be nice is greater diversity of career background. I don’t know the last Justice who had criminal defense experience (Marshall, perhaps?), but it’s been a while. Souter had experience as a state court judge, but I believe none of the current Justices do. I don’t really care about experience in electoral politics (it is and should be a different kind of job from being a judge), but there’s a case to be made there as well.
April 11, 2010, 12:32 pmB-Rob says:
It is refreshing to note that Obama, of course, would be the very first president to exclude people from consideration based on their gender or race. After all, it was only merit and merit alone that accounted for the fact that 107 of the 111 justices have been White males. Yup . . . nothing but merit explains that.
One thing I find so funny about conservatives: they had no problem with obvious discrimination when it was just minorities and women getting jammed. But as soon their demographic started getting the short end of the stick from time to time, the entitlement mentality kicked right in and discrimination became “unfair.” Quotas are fine until your own ox gets gored, I guess.
April 11, 2010, 12:57 pmB-Rob says:
I wonder if she knows she is a semi-closeted lesbian?
April 11, 2010, 1:00 pmMartyA says:
I think you give Obama too much credit. The alternatives you mention all seem like rational choices. He wants something radical; some one who will help him destroy the middle class in America.
April 11, 2010, 1:02 pmWho’s the black female at Penn law who Clinton appointed and then quit when it became known that she hired illegal aliens? How about the black female who tried to block the black Justice? What about all the ACORNers who don’t want to be on death panels? Got to be a bunch of radical union lawyers who revere Ayers and would love a chance to get back at the man!
B-Rob says:
Have you actually ever met Ms. Kagan? I have. She is as feminine as any law nerd.
April 11, 2010, 1:02 pmWes says:
When was the last time a justice had experience as a working police officer? Stupak is from my district and though I never voted for him I was ready to do so if he had held firm on the health bill. When he did not I still ended up respecting his decision in the face of a no win situation.
And even after he did what he felt was right and I felt was wrong, I would take him over the three names on the short list. One thing of interest, he is Catholic. The way the numbers stack up now does that make another Catholic a non-starter?
April 11, 2010, 1:08 pmB-Rob says:
This is interesting. The concept being that a lesbian would not be able, I guess, to rule in a disinterested manner on a gay marriage case. Similarly, Sotomayor was questioned as if a Latina could not be expected to be objective on a race discrimination case.
This, of course, presents the obvious question: if a Latina cannot rule on a race discrimination, then how can a White male rule on a race discrimination case, either? After all, if the victim of discrimination is a Latina, most likely the perpetrator was a non-Latina. They have just as much of a vested interest in ruling against that Latina as another Latina would have to rule in her favor. Which means, of course, that none of the White males should have been permitted to decide the Ricci “reverse discrimination” case. Especially Alito and Scalia, since they are paisans.
This all, of course, goes to prove one point: the assumption is that only a White male can be “objective” in a discrimination case. We got that clear from Jefferson Davis Sessions when he asked Sotomayor about her objectivity, but never asked Alito or Roberts about their objectivity. But as I pointed out, if a Latina can be expected to be swayed by racial allegiances, then, so, too, would a White.
April 11, 2010, 1:11 pmB-Rob says:
That means Ginsburg, Breyer, Alito, Scalia, Thomas, Roberts, and Kennedy are not competent to serve on an appellate court, but Rudy Giuliani is? Methinks your definition of “competent” needs a lot of work.
April 11, 2010, 1:18 pmRichard W. Painter says:
This has nothing to do with race.
Conservatives are also going to make fools of themselves if — before a nominee is even announced — they are speculating about the sexual orientation of the Solicitor General. This is yet one more factor that is completely irrelevant.
WH Counsel’s Office surely reads this blog (our people spent plenty of time checking up on Daily Kos and the rest of them). We might want to keep the comments here on a sufficiently informed level so the White House knows they have serious people to contend with.
April 11, 2010, 1:32 pmSandy MacHoots says:
It’s the Gaelic in his Scots forebears. The Gaels, as Chesterton noted, are the people that God made mad: “All their wars are merry and all their songs are sad.”
April 11, 2010, 1:37 pmMax Power says:
As it happens, I have met her. Nevertheless, your point is well-taken that men and women in the “law nerd” community tend not to be paragons of masculinity and femininity as traditionally conceived. :)
April 11, 2010, 1:57 pmSyd Henderson says:
Thomas Porteous has experience as both a state and federal judge and is an expert in impeachment law.
April 11, 2010, 1:58 pmJRL says:
I wasn’t sure if this was serious or not until I got to here:
“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).”
Historic indeed!
April 11, 2010, 2:04 pmAndrew says:
Seems to me that if a potential nominee is closeted, “semi-closeted”, quasi-closeted, or infinitessimally closeted, outing that person here in this comment thread is tacky at best, Chris.
As for racial and other quotas, I think that they are largely unnecessary to produce diversity, if there is equal opportunity.
April 11, 2010, 2:06 pmSara says:
Max – By “not feminine,” what do you mean?
April 11, 2010, 2:18 pmDG says:
She’s a lesbian – she brings her partner to social events. Who cares?
What does one do to be “semi-closeted”? Is it that Kagan hasn’t rented a billboard to declare her sexual orientation? Why should she have to do that?
Maybe its just none of anyone’s business.
April 11, 2010, 2:24 pmAJK says:
Methinks your definition of “prosecutor” needs a lot of work if it excludes Sam Alito.
I’m guessing it’s a code word for “ugly”.
April 11, 2010, 2:24 pmDG says:
BTW, the whole feminine behavior vs lesbianism correlation is high enough to be deceptive, but low enough to make fools out of people. The worst kind of statistical metric.
April 11, 2010, 2:25 pmScale Tipper says:
Whether we like it or not, a judge’s race and gender seems to have a measurable (even “enormous” and “dramatic”) effect on the judge’s rulings: http://questionspresented.wordpress.com/2010/03/29/a-typical-case-of-american-blind-justice/
April 11, 2010, 2:30 pmJohn Herbison says:
President Obama could do a lot worse. He could appoint the second SCOTUS member who thinks a lynching is something that its victim walks away from.
April 11, 2010, 2:53 pmJoe says:
The one group that never seems to be considered when the Dems. are in power are white non-jewish males. I don’t recall any being on lists of possibilities that I’ve seen.
April 11, 2010, 2:53 pmkatenochaser says:
I suggest that Obama consider Marilyn Milian. Her wise Latina jurisprudence is clearly in evidence on any given episode of The People’s Court.
April 11, 2010, 3:18 pmMax Power says:
That’s actually not what I meant. You also misquoted me: I said “not stereotypically feminine,” not “not feminine.” General Kagan has a short haircut, is fond of wearing suits, and has no family life of which she speaks publicly, for starters. I think most would agree that these are not traits that are “stereotypically feminine” — but the key word is “stereotypically.” Personally, I think that each of these traits is perfectly fine in a Supreme Court justice or anyone else. So is being a lesbian, if she happens to be one. Perhaps my skepticism of the value of the gender stereotypes which Kagan does not follow did not come across in my original post. I had no intent of criticizing her for not following them. I just wanted to know what the basis was for the lesbian rumors.
April 11, 2010, 3:30 pmRon Potato says:
Soon there will not be a single Protestant on the Court.
I was going to say white male Protestant, but there aren’t any female Protestants or non-white Protestants either.
April 11, 2010, 3:33 pmSara says:
I have no problem seeing her as feminine, stereotypically or otherwise. http://www.justice.gov/osg/
April 11, 2010, 3:41 pmMark Field says:
It’s sad indeed that this neglected group has just 5 current members on the Court and has been so underrepresented historically.
April 11, 2010, 5:21 pmCrazyTrain says:
I know SecDef, SecTreas, VP, are all jooish lesbians.
April 11, 2010, 5:36 pmCB says:
Well how naive of you to think that the Protestant majority of the American people should have anyone like them on the Supreme Court. Everyone knows, of course, that WASPs are trouble, if not actually Nazis. It’s not like they made the most impressive country in the world based on their values of hard work, perseverance, self-reliance and puritanism. And anyhow, I’m pretty sure you couldn’t find any of them with any legal experience. ;-)
April 11, 2010, 6:03 pmChrisTS says:
I know, I know; it makes all of us decent white non-jews weep.
April 11, 2010, 6:11 pmChrisTS says:
Wow. Those last two were gems.
April 11, 2010, 6:13 pmChrisTS says:
Holland?
April 11, 2010, 6:14 pmSandy MacHoots says:
Orin, I laughted out loud at this. Nice and dry. Kudos.
April 11, 2010, 7:24 pmWJ Alden says:
I look forward to a Supreme Court that is one-third Jooish and zero-thirds Proddy. Then maybe we can get over our infatuation with the idea that disparity=racism and begin to accept the idea that, no, all groups aren’t created equal.
Of course we still won’t be allowed to mention it, but wouldn’t it be nice?
April 11, 2010, 7:30 pmkrs says:
I like this Final Fantasy litmus test. I used to worry about the prospect of a Justice Tiamat on the Supreme Court, but it seems that others are aware of what that would mean, and I shouldn’t be afraid.
April 11, 2010, 7:33 pmAnthony says:
MartyA – Lani Guinier would bring some diversity: Radcliffe for undergrad, Yale Law, and a professor at Harvard
April 11, 2010, 8:11 pmPatrick Of Atlantis says:
Obama is probably going to pick someone who has the same contempt for the Constitution as he has.
April 11, 2010, 8:56 pmleo marvin says:
Our sense of fair play keeps us from poaching the GOP’s sole remaining demographic.
April 11, 2010, 9:50 pmox says:
And you wonder why people think you’re a hack — because this is what passes for humor.
April 11, 2010, 10:18 pmleo marvin says:
If I were you I’d demand my money back.
April 11, 2010, 10:25 pmDiversity in the Nation’s Highest Court | Little Miss Attila says:
[...] Kerr, at The Volokh Conspiracy: No matter who he chooses, Obama will continue to break new ground, or at least help bolster some [...]
April 11, 2010, 10:32 pmMike McDougal says:
It’s only fair.
April 11, 2010, 11:21 pmzuch says:
Prof. Kerr:
On what planet was Blackmun a “liberal”? (And Brennan was appointed by Eisenhower, FWIW, but then again Eisenhower was secretly a commie).
It may well be that Blackmun ended up looking more and more liberal as the court was packed with far-right conservatives. But I’m trying to think of why you think he was a liberal.
Cheers,
April 12, 2010, 12:47 amPerseus says:
It’s not worth much given what Eisenhower later had to say about his appointment of Brennan. As for Blackmun, his own positions began to shift over time, and he increasingly voted with Brennan as opposed to Burger (who was no Scalia).
April 12, 2010, 2:10 amOrin Kerr says:
Zuch writes:
According to Wikipedia, citing Linda Greenhouse as a source, Justice Blackmun agreed with Justice Brennan 97.1% of the time and Justice Thurgood Marshall 95.8% of the time from 1986 to 1990. Those are nearly identical voting records as Brennan and Marshall, and I think that makes it fair to group the three together. It’s true that Blackmun started off differently, but I think he is generally viewed today as he was in the later part of his career. I assume you agree that Brennan and Marshall were liberals?
April 12, 2010, 2:18 amLaura Victoria says:
WJ Alden, and others. A Fox News panel the other day brought up the fact that with Stevens’ retirement, SCOTUS would have no Protestant member. I was planning on writing a blog post on this topic at my legal/Colorado politics blog, http://www.abusivediscretion.wordpress.com. The Catholic majority is somewhat of a fluke, I think, particularly with Justice Thomas.
Eugene posted above about discrimination against Jews because of their obvious disproportionae representation among attorneys and other professionals. The additional amusing issue to this posited question, is what is Protestant? None of the SCOTUS Catholics are on the school lunch cafeteria plan, so far as I’m aware. But any “Protestant” selected by Obama, would likely be a member of a denomination that has opposition to gun rights as a major religious tenet posted on its website. I would think restoring one Protestant seat might best wait for a GOP CINC.
Anyone with any thoughts on my writing on this topic and what might be fun,interesting, etc?
April 12, 2010, 7:26 amAnonsters says:
And how people “generally view[]” the “later part” (i.e., the last handful of years) is always, or even usually, an accurate and historically faithful portrait of a person’s whole career.
April 12, 2010, 8:06 amCorpus Juris Vol. VIII » First Thoughts | A First Things Blog says:
[...] Professor Orin Kerr has more on President Obama’s “diverse short list.” [...]
April 12, 2010, 8:32 amThatGuy says:
Orin,
Please, a warning sign when you’re going to apply that much sarcasm. You dripped some on my shoes.
-That Guy
April 12, 2010, 9:19 amjgreene says:
Since the liberal members of our Supreme Court seem to believe that there are times when they should look to International Law in making decisions before the Supreme Court, and given that this Executive Branch has a left leaning Marxist philosophy of governance and economics, my humble suggestion is that the diversity should be expanded to include Justices from the Peoples Republic of China and of course Mother Russia.
This would of course expand the diversity pool to include overt Marxist-Leninist-Maoists instead of covert leftist, socialist, Marxist, anti-Constitutionalists.
God save our Republic…er never mind. Obama has his hand on the tiller, listing to the portside.
April 12, 2010, 10:04 amSmooth, like a Rhapsody says:
ahh…jgreene threw a curve at me…
I thought he was engaging in sarc and was going to suggest EV for SCOTUS.
April 12, 2010, 10:36 amThales says:
Patrick Of Atlantis says:
“Obama is probably going to pick someone who has the same contempt for the Constitution as he has.”
God, I hope so. Otherwise how is he going to be able to impose a socialist/communist/fascist/crypto-caliphate government? You really need that 5th vote to make all that happen. But in the coming years, I really hope he uses his Democrat party majority to ram through more legislation that’s just too big, and then expands the court to 500 justices, the 491 empty slots of which will be filled with former FARC members/cocaine runners pulled out of their guerilla camps in the Colombian jungles, to rubber stamp its constitutionality. That is the hope and change I expected.
April 12, 2010, 10:45 amRichard W. Painter says:
If we are going to get hung up on bean counting, then:
Where is a mainline Protestant to replace Stevens? I feel left out. I’ll have to satisfy myself with two hundred years of case law decided by a mostly Protestant Supreme Court (including one particularly controversial opinion on a social issue where views of mainline Protestant denominations differ from those of the Catholic Church).
Where is a judge who knows how to wear a bow tie?
April 12, 2010, 10:46 amCJColucci says:
The short list looks suspiciously like Democratic versions of John Roberts, except that two of them lack penises. There are even rumors, so far as I can tell unsubstantiated, about sexual preference.
April 12, 2010, 11:08 amBob from Ohio says:
According to ABC, Leah Ward Sears of Georgia is also on the “short list”.
Her background would break the current mold. Ivy but non-Ivy law and state judicial experience outside of the NE. A southerner. Military “brat”.
She would be the third black but first black woman. First time that two blacks would be on the court together.
I think these kind of firsts are appealing to Obama.
What do people think of her?
April 12, 2010, 11:13 amMartinned says:
All Hail the Republic of the Seven United Netherlands!
(In other words: Kudos & thanks to Chris.)
April 12, 2010, 11:22 amJoseph Slater says:
I’m with Richard W. Painter in that I’m shocked that this thread hasn’t focused on the bow-tie issue. Priorities, people!
April 12, 2010, 11:25 amMartinned says:
I think for the purposes of the argument in the OP, the relevant question was the Justice’s liberal/conservative rating at the time when Wood clerked for him. That would be OT 1976, not 1986-1990.
April 12, 2010, 11:27 amOrin Kerr says:
Martinned,
Why? It’s a humor post, not a serious one: If you want to insist on some concept of theoretical purity, I think we have two different goals.
April 12, 2010, 11:49 amLonelyArtistClub says:
A source inside the administration has told me that in the interest of appointing someone outside of the Harvard/Yale mainstream, that POTUS is considering Constitutional Law Professor from the University of Oklahoma Rick Tepker.
April 12, 2010, 12:15 pmMartinned says:
Point well taken, of course. Nevertheless, as previous commenters pointed out, there was something of a serious point there as well. That goes even more for your comment that I replied to. If the claim is that all three clerked for liberal Justices, Zuch has a point that Blackmun anno 1976 was hardly a liberal.
Like the Court Jester who is the only one who is allowed to tell the King the truths the King does not want to hear, good comedy almost always has a grain of truth within the joke. That is why Weekend Update is the funniest (least unfunny?) part of SNL, it is why The Daily Show with Jon Stewart works and it is why Jerry “telling jokes about nothing” Seinfeld will always be less funny than the true greats of his profession. Of course, in order to pull this off you need to get the facts straight. Moreover, if you do this on an otherwise serious blog, you have to accept the likelihood that the post is going to start off a serious conversation.
April 12, 2010, 12:17 pmFrank Drackman says:
Its the 21st Century..
April 12, 2010, 12:23 pmis America ready for a Southern White Male on the Court?????
Richard W. Painter says:
A Southern White Male? Walter Estes Dellinger, III.
Be careful what one wishes for.
All matters but judicial philosophy — and perhaps a decent bow tie — should be irrelevent.
April 12, 2010, 12:33 pmyankee says:
I’m more worried about Justice Kefka or Justice Sephiroth. Justice Tiamat would just sit there, but the Kefka/Sephiroth Court would rule that the Constitution mandates global thermonuclear war.
April 12, 2010, 12:47 pmzuch says:
Your read and mine are not necessarily different.
Cheers,
April 12, 2010, 12:51 pmzuch says:
I’m not quite sure what relevance the lack of penises has. Wouldn’t a presence of boobs be just as relevant? Why concentrate on the former? That said, I acknowledge your own personal views might dictate your own prioritisation of what is relevant. I’m just askin, is all….
Cheers,
April 12, 2010, 12:56 pmSCOTUSblog » Monday round-up — part two says:
[...] Richard Serrano noted the professional connections that the three leading candidates shared, while Orin Kerr made light of their similar credentials. Sheryl Gay Stolberg and Charlie Savage of the New York [...]
April 12, 2010, 12:58 pmOrin Kerr says:
Martinned, your perspective would make sense if the serious conversation you want to have related to the serious point underlying the humor in the post.
As I’m sure you realize, the serious point in the post was that the three nominees actually have very similar resumes, both to each other and to the current Justices.
As far as I can tell, the serious point you want to explore — defining the point several decades ago when Justice Blackmun went from moderate to liberal — seems quite irrelevant to that point.
April 12, 2010, 1:16 pmMartinned says:
[My apologies in advance if any of this sounds like nitpicking or any other kind of killjoy, buzzkill, etc.]
Actually, I don’t care about Justice Blackmun very much, and certainly not in the context of this thread. Instead, the question concerns one of only a few points of comparison:
1. Where did they go to Law School?
2. For which (kind of) Justice did they clerk?
3. Do they have lower court experience?
4. What kind of non-judicial experience do they have?
If there is disagreement about the experience Judge Wood would have had clerking for Blackmun, that represents fully 1/4 of the argument of the OP.
P.S. SCOTUSBlog’s Tom Goldstein has a detailed article on the TNR website going over the alternatives. His money is on Kagan.
April 12, 2010, 1:44 pmCJColucci says:
Wouldn’t a presence of boobs be just as relevant? Why concentrate on the former?
I’ve never seen more than a head shot of any of them, so I don’t know anything about their pectoral endowments. (Though Garland’s head shot doesn’t suggest a man fat enough for man-boobs.) Not to say that I have direct knowledge of their genitalia, either, but I felt reasonably confident about who had what there.
April 12, 2010, 2:39 pmOrin Kerr says:
Martin,
I think you’re missing the joke. The point of the post isn’t that the nominees are actually similar, but only that they have similar resumes. Thus, I am not actually arguing that their views of the law match their resumes, or that slight differnces in their resumes are actually relevant in how the shortlisters approach the law. They are not.
For example, when I say that Kagan would be different from Alito and Sotomayor because she went to Harvard Law and not Yale Law, I am not actually suggesting that this is a relevant difference between them, and that if we study the differences between Harvard and Yale we can gain insights into their views of the law.
Finally, contrary to your suggestion that the ideology of the Justices for whom they clerked was 1/4 of the argument of the post, it’s really just one word, “liberal.” If you prefer, feel free to read the post as if it didn’t have that one word.
April 12, 2010, 2:47 pmMark Field says:
I’m embarrassed to say that it took me till now to recognize that “et tu Brutus” was perhaps intended.
And no, that was not me in comment 1.
April 12, 2010, 3:37 pmPerseus says:
In that case, George Will would be a good candidate for the conservative side (and if he retired when Stevens did, it would still give him 20 years on the Court).
April 12, 2010, 4:11 pmHerb Spencer says:
If “diversity” is now defined as embracing graduates of the thinner vines of the Ivy League, I worry about the overall strength and longevity of the gene pool. These characters are no more “diverse” than tennis players are from golfers at a Old Money country club, and hold no monopoly on morals, intelligence or integrity. Show us someone from a state or local school who’s respected and experienced in the actual practice of different areas of law, and I’ll show you a good nominee for a job that any competent lawyer could handle but too many are denied, simply because of where they went to school.
April 12, 2010, 4:12 pmShelbyC says:
Whether someone chooses to concentrate on boobs or penises is their own business.
April 12, 2010, 4:16 pmleo marvin says:
Orin, you never explain the joke. Never. It’s one of those rules in life you just have to trust, even when everything seems to argue against it (and the diversity of responses you get on the internet will often include some that seem to do so quite persuasively). Explain that it was a joke? Sometimes unfortunately necessary. Explain the joke? If you value your sense of humor, your self-esteem, maybe even your immortal soul, you just don’t go there.
April 12, 2010, 4:58 pmAnonsters says:
Indeed. See Stephen Colbert.
April 12, 2010, 5:20 pmJustice John Paul Stevens' Mixed Record on Civil Liberties - Reason Magazine says:
[...] trial experience at all, and both served as prosecutors (Justices Samuel Alito and Sotomayor). The most likely path to becoming a Supreme Court justice is to clerk for a federal appeals judge, then work your way [...]
April 12, 2010, 5:35 pmyankee says:
Just think, if he nominated Pam Karlan she’d be the first Supreme Court Justice to have a B.A., M.A., and J.D. from Yale.
April 12, 2010, 6:52 pmguest says:
Oren, I’m always a little surprised when you write these periodic snarky, sarcastic posts, mocking conventional wisdom as you perceive it. It always just seems a little beneath you to write with such cynicism. I really enjoy your writing and think you’re one of the best legal writers out there; again, I’m just surprised that every few months there’s a post along these lines. They always appear designed to show, with biting and mocking “humor,” how silly what everyone else thinks is and how much smarter you are then everyone.
April 12, 2010, 6:57 pmleo marvin says:
Don’t do it, Orin. You can’t win.
April 12, 2010, 8:30 pmEarle Williams says:
Isn’t that the whole point of blogging?
April 12, 2010, 8:38 pmMark Field says:
There goes Oren again, perfidiously trashing the reputation of Prof. Kerr.
April 12, 2010, 11:13 pmSouthern Appeal » The Short List says:
[...] am unable to vet these folks as much as I would like. Orin Kerry over at the Volokh Consipracy has a great post about the “diversity” of some of these potential justices over [...]
April 13, 2010, 11:24 amThe fabulous diversity of Obama’s SCOTUS shortlist says:
[...] Orin Kerr explains. [...]
April 13, 2010, 4:14 pmChris says:
Can’t believe Orin explained the joke.
April 13, 2010, 4:54 pm2l says:
first time visiting the site. i just want to say that this is a tough crowd of commenters. I know its mostly lawyers and law students on here, but wow.
April 13, 2010, 5:04 pmPaulie says:
Umm, the fact that women couldn’t even attend law school until about 60 years ago. So, prior to Kennedy (these new female lawyers need experience), there was no discrimination by the Presidents.
April 13, 2010, 5:32 pmJohn Herbison says:
Since Thurgood Marshall was confirmed in 1967, there has been a de facto quota of one black member of SCOTUS. Sixteen vacancies have occurred since then (not counting Stevens, whose seat is not yet vacant). Twenty-three persons have been nominated to fill those vacancies (counting Rehnquist twice and Roberts twice).
No black person during that time received serious, “short list” consideration for any vacancy except the vacancy created by Justice Marshall’s retirement.
April 13, 2010, 6:58 pmPotential Nominees says:
[...] have some helpful analysis of potential nominees’ diversity and second amendment positions here, here, and [...]
April 14, 2010, 1:28 pmA Funny (Yes, Funny) Look at Diversity and the Supreme Court | Firms USA says:
[...] to be on President Obama’s short list, Elena Kagan, Diane Wood and Merrick Garland, Kerr writes, at the Volokh [...]
April 14, 2010, 5:41 pmAMcA says:
Could he please find someone who has been a trial lawyer, and can bring the perspective of “do you people realize what this is going to do to front-line actual lawyers?” to the Court?
April 15, 2010, 2:55 pmGeorg Felis says:
If he were to nominate Hillary, he would have the best of both worlds: It would make it almost impossible for her to run against him in 2012 (Confirmed or not, either way), and it would focus the ire of the Conservatives against somebody other than him.
April 15, 2010, 5:35 pmDiversity; not so much. . . : Scary Libertarian says:
[...] same institutions that produced the last two decades of presidents. If you’re looking for diversity of life experience here, not so [...]
May 18, 2010, 7:34 amWeighty questions indeed for Supreme Court pick | Kyle Wingfield says:
[...] Volokh Conspiracy, one of the best lawyer blogs around, a tongue-in-cheek take on adding diversity to the Supreme [...]
May 27, 2010, 5:13 pmNo Justice is an Island « QuestionsPresented says:
[...] the most diverse set of Supreme Court justices in American history. See also here and here. But see here. In reflecting on Kagan’s nomination, it is not clear that we understand the Senate’s [...]
August 5, 2010, 4:09 pm