At Volokh Conspiracy, one of the best lawyer blogs around, a tongue-in-cheek take on adding diversity to the Supreme Court when replacing John Paul Stevens:
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.
This list on Wikipedia details the education of 64 justices, 33 of whom attended an Ivy League law school. Wood (University of Texas) is the only one of these three not to have attended an Ivy League law school, although the Volokh post makes clear that her career has closely tracked those of other justices past and present.
This is not an “anti-elitism” rant. Obviously, we want some of the brightest minds in our nation to serve on the Supreme Court, and some very bright minds in our nation attend Ivy League schools, clerk for Supreme Court justices and teach at elite law schools. But I think it’s safe to say that many more bright minds, even in the legal field, don’t follow that track.
So, when the nomination comes and we are lectured about the importance of diversity on the court, let’s keep in mind that there are different kinds of diversity — and that, whomever the president chooses and whatever he or she looks like, we’re not exactly talking about the man or woman next door.