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.

Despite Denials, Ginsburg Remains Focus of Retirement Speculation

Experts say there's a good chance Obama will have an opportunity to name another nominee to the high court in his first term and an even greater chance if he wins a second. No president since Ronald Reagan has filled three seats on the court.

To be sure, none of the sitting justices has given any indication they are preparing to retire and all appear to be in good health.

Still, speculation has swirled around Justice Ruth Bader Ginsburg, 77, who, as one of the court's oldest justices, endured colon cancer in 1999 and battled pancreatic cancer last year. As a member of the court's liberal wing, she would presumably want to vacate her seat during a Democratic administration.

Ginsburg has emphatically denied that she has any intention of stepping down, and sources say she is determined to continue to serve.

"She looks frail; that's always been true, and it has always caused people to underestimate her," wrote Tom Goldstein on ScotusBlog.com. "But she is at the top of her game and has no reason to retire."

Nonetheless, if Ginsburg or another justice should step down by choice or for health reasons in the years ahead, look for Obama to revisit some of the same names on his most recent list, sources say.

Who might be the next frontrunner?

"If Obama faces a tougher Senate after the midterms and wants an easier go the next time around, he could well pick Garland," Rosen said, referring to the judicial moderate.

On the other hand, said the Brookings Institution's Stuart Taylor, "there will be huge pressure for a replacement to be a woman" or other minority to further diversify the court.

"In any event, I don't think they [the administration] will have to start from scratch," he said.

But the wild card in a potential future Obama nomination is the prevailing political landscape and the youthfulness of previously vetted potential nominees. As the clock ticks, possible picks like Garland and Wood will only continue to age.

"Unless it's next year, they'll all be a year older, and in three or four years, they may be deemed too old," said Taylor of some of Obama's short-listers who are approaching 60.

"Once you get to be 60, 62 or older, forget about it. Cross them off the list," he said.

ABC News' Ariane de Vogue contributed to this report.