Elena Kagan, Law Professors, Merrick Garland, SCOTUS, Sidney Thomas, Supreme Court

What Happens Next to the Unsuccessful Shortlisters?
And a correction: Kagan and Dan Meltzer are besties.

Now that the fabulous Elena Kagan has been officially nominated to succeed Justice John Paul Stevens on the Supreme Court, some folks have been wondering: What does the future hold for the unsuccessful shortlisters? Let’s consider them, one by one.

1. Judge Merrick Garland (D.C. Cir.): The brilliant D.C. Circuit judge — practically a “tenth justice” himself, due to his ridiculous success in feeding his clerks to the Court — could be considered for a future vacancy. He’s young enough, at 57, and the Garland clerk mafia is strong, with representation in the White House counsel’s office and other D.C. power centers.

Garland is the SCOTUS candidate who would be most appealing to conservatives, so his chances of appointment are directly proportional to Republican representation in the Senate. My advice for Judge Garland: vote Republican.

2. Judge Sidney Thomas (9th Cir.): The well-regarded Ninth Circuit judge’s appearance on Obama’s short list surprised some, but it really shouldn’t have. Sid Thomas is very smart and very liberal, and he would add diversity to the Court (as a Montanan, non-Ivy Leaguer, and Protestant).

“Sidney Thomas is being thrown around in case [Justice Anthony M.] Kennedy steps down in the next two years,” a D.C. insider involved in the nomination process told me. “As far as we can tell, Obama likes [Sid Thomas] and wants to introduce him as a possibility to make him more palatable next time around.”

If Justice Kennedy, 73, were to leave the Court, it would be without any West Coast representation. Nominating Judge Thomas — a member of the Ninth Circuit, just like AMK was before his elevation — would remedy that.

My advice for Judge Thomas: pray for Justice Kennedy to have a heart attack.

3. Judge Diane Wood (7th Cir.): It pains me to say this, because I adore Judge Wood, but this go-around was her last best chance at the Court. This July 4, Judge Wood will turn 60, viewed by some as the upper bound for a nominee in terms of age. As one of my friends observed on Facebook, Wood is on her way to becoming the liberal version of Judge Edith Jones, whose numerous unsuccessful appearances on shortlists led Slate to dub her “Susan Lucci in judicial robes.”

My advice for Judge Wood: enjoy Chicago. Or pray for ill to befall Justice Ginsburg very, very quickly — if RBG leaves soon, you might still have a shot.

In addition, I have a rather significant CORRECTION, concerning some speculation I passed along last night. The rumor was that Daniel Meltzer, the deputy White House counsel who recently announced his resignation to return to the Harvard Law School faculty, harbors a grudge against Kagan — because she beat him out for the HLS deanship — and that Meltzer therefore lobbied against her nomination to the Court.

So…. just how wrong was I about tension between Kagan and Meltzer?

Very wrong, apparently. The pushback started coming from commenters, who noticed that Kagan described Meltzer as one of her “best friends” during her Solicitor General confirmation hearings.

I dismissed this as the kind of boilerplate pleasantry that a nominee would say about a colleague in the audience for her hearing. Then a second commenter claimed:

this stuff is absurd – meltzer was asked and declined to be dean, supported elena for job instead. then he worked as her right hand man throughout her time. most think he is her closest friend on the hls faculty. word has it he pushed v hard for her for scotus.

Again, I discounted this. The original version of the story was, well, so much juicier. And to the extent that people were saying “Dan and Elena are friends” — well, we all know what “friendship” means at Harvard Law School….

But then the fact-checking spread beyond anonymous commenters (whom we sometimes ignore here at ATL, for our own mental health). Several well-placed sources, in both D.C. and Cambridge, emailed and called me personally to complain about the Kagan / Meltzer rumor. Said one knowledgeable source, who knows Meltzer:

Your take on Meltzer could not be more wrong. It displays some creativity in conspiracy thinking, but it’s so far divorced from the facts that it’s difficult even to address on the merits.

The rumor relied in part upon the timing of Meltzer’s departure (in terms of both the announcement date and effective date). His departure was announced on the Friday before the Kagan announcement, which some interpreted as his protesting against Kagan’s selection, and goes into effect on June 1, which made some think he was trying to avoid working on the Kagan nomination. (It also raised concerns about Meltzer possibly leaving the counsel’s office in the lurch, by requiring the training of a successor on short notice, during an obviously hectic time.)

But it seems that all of this was wrong, wrong, wrong. The Meltzer associate informed us:

Dan was never supposed to stay [in the counsel’s office] this long. [New White House Counsel Bob] Bauer’s Deputy was chosen long ago, and has been well-trained and ready to go for months.

The denials of tension between Kagan and Meltzer came from Kagan’s side too. A close associate of Kagan described Kagan and Meltzer as “close friends,” who have dinner together with some regularity — sometimes weekly. This source claimed that Meltzer would either have advocated strongly in favor of Kagan or recused himself, due to his closeness to her.

Here’s an interesting bit of trivia that fed some of the speculation that Meltzer might have been supporting Judge Wood over Solicitor General Kagan. From a source in the legal academy:

[Dan Meltzer’s] father, Bernie Meltzer, is a legend at the University of Chicago, where he taught forever until his recent death — so perhaps Dan had some inclinations towards Wood.

Interesting note: Kagan was either not invited back to the U of C faculty after her stint in the Clinton administration, or not sufficiently welcomed — she got over it by joining the HLS faculty instead. (That has not, however, stopped local Chicago media from claiming her as a home-town gal because of her time on the U of C faculty with Barack.)

Regardless of how the University of Chicago felt about Kagan back in the late 1990s, they seem very proud of her now.

We’ve reached out to Professor Meltzer for comment, and if we hear from him, we will update this post.

UPDATE: We haven’t heard from Professor Meltzer, but a colleague of his on the Harvard Law School faculty had this to add:

Dan was scheduled to return to the faculty next year for a while. I believe about 60 days ago they circulated the roster of who would be teaching 1Ls in the fall, and Dan was already on it. So I don’t think you can make anything of the timing of his resignation, as at least his return to HLS was in the cards for a long time.

Susan Lucci in Judicial Robes [Slate]
Former Professor Elena Kagan Nominated to Supreme Court [University of Chicago Law School]

Earlier: More Clues That It Will Be Kagan

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