Supreme Court Runners-Up: Obama 'Short Listers' Await Possible Third Nomination

WASHINGTON, May 12, 2010— -- When President Obama introduced Elena Kagan to the country on Monday, Judge Merrick Garland was hearing a routine case in downtown Washington.

A few hours earlier a feverish press corps had been camped out at his house wondering if he was to be the president's pick for the 112th justice on the Supreme Court.

Judge Diane Wood, another top court contender, is teaching a class today at the University of Chicago.

For many of the other so-called Obama Supreme Court "short listers", the story is much the same: Life as usual.

Homeland Security Secretary Janet Napolitano continues to monitor a massive Gulf oil spill, while Martha Minow prepares for graduation ceremonies at Harvard Law School where she's dean. Judge Sidney Thomas, on the Ninth Circuit in San Francisco, heads to the bench for another average day.

But court watchers say the names left behind are a reflection of how the administration views its political fortunes and provide clues to who could be tapped next if Obama gets another pick.

After a bruising political battle over health care reform, and with several major legislative items waiting in the wings, Obama's decision to promote his solicitor general to the high court was likely a "centrist choice" made at least in part to preserve his political clout, said Jeffrey Rosen of George Washington University Law School.

Kagan, who has never been a judge, received some Republican support during her confirmation as solicitor general and has a scant paper trail on divisive social issues -- two points that likely factored into the president's decision. She is also a widely respected legal scholar and consensus builder who brought conservatives into the fold as dean of Harvard Law.

"The conventional wisdom is that Garland would have been an easier confirmation," said Rosen, "but fairly or not he might be perceived as too moderate. ... [Obama] also must have decided that he was not up for the battle with conservatives that Diane Wood would have provoked."

Garland, 57, a federal appeals court judge, had been considered the candidate with the greatest ability to win bipartisan support since members of both political parties have publicly praised him as a moderate with a clean record. But his nomination also could have angered the president's liberal base.

However, by naming Wood, 59, a notably progressive legal mind, the president could have sparked an even more contentious fight with Republicans on the hill than he's expected to get with Kagan, since conservatives had signaled deep displeasure with Wood's record on divisive social issues.

As for the other potential nominees -- Sidney Thomas, Martha Minow, Janet Napolitano, Leah Ward Sears and Ann Claire Williams -- experts believe at least part of the reason they were passed over is that their nomination wouldn't jibe with this political reality: Republicans are expected to make inroads in Congress during November's election, which means future legislative battles -- or another Supreme Court nomination -- could be even the more challenging.