State Supreme Court Justices in the SCOTUS Pipeline

By Steven Klepper posted 07-17-2015 10:29


Last Friday, conservative columnist George Will recommended that, the next time a Republican holds the presidency, his or her first Supreme Court nominee should be Texas Supreme Court Justice Don Willett. This is getting to be a trend.

On the other side of the aisle, California Supreme Court Justice Goodwin Liu is expected to be on the shortlist the next time a Democratic president has a chance to fill a Supreme Court vacancy. And, back in April, Rick Casey identified former Texas Chief Justice Wallace Jefferson as a compromise nominee who could clear a Republican U.S. Senate if President Obama unexpectedly has another chance to nominate a justice.

These calls coincide with growing criticism of the Court’s lack of professional diversity. Justice Kagan is the only current justice who did not previously sit on a U.S. Court of Appeals. In calling for more diversity (not just racial) on the Court, Justice Sotomayor noted that she is the only current justice with experience in state government. Justice O’Connor, who served as a state legislator, trial judge, and intermediate appellate judge in Arizona, and Justice Souter, who served as a trial judge and New Hampshire Supreme Court justice before his appointment to the First Circuit, were the last justices with any experience on a state bench.

It hasn’t always been this way. In the eighteenth and nineteenth centuries, before the rise of the modern federal appellate courts, more than a quarter of Supreme Court justices previously served on state supreme courts. Since 1900, however, there have been very few such appointments. If you were awake through your first year of law school, you’re familiar with three of them: Oliver Wendell Holmes, Jr., Benjamin N. Cardozo, and William J. Brennan, Jr.

It makes sense that presidents should look more to state supreme courts for nominees. Every time a U.S. Circuit Judge is nominated, we spend an inordinate amount of time trying to solve the mystery of the degree to which the nominee’s decisions were merely following Supreme Court or Circuit precedent. By contrast, state supreme court judges often write on a blank slate and have much greater power to depart from precedent. When interpreting state employment discrimination laws, they are free to disagree with U.S. Supreme Court interpretations of identically worded federal statutes. They can interpret their state constitutions to provide greater protections to criminal defendants than the U.S. Constitution provides. (Note: The Texas Supreme Court has only civil jurisdiction, so it’s a bad example as to Willett and Jefferson).

No matter where you fall on the liberal-conservative spectrum, state supreme court justices’ judgment, in deciding whether and how to exercise these broad powers, is likely a better indicator than opinions by U.S. Circuit Judges. If you can think of any state supreme court justices who would make good Supreme Court justices and would have a real chance of making a short list (e.g., under age 55), please let me know in the comments.

[This post was updated to reflect that Justice Souter served on the New Hampshire Supreme Court before his appointment to the First Circuit and then to the U.S. Supreme Court.]




09-30-2015 11:49

I'm now adding new Michigan Supreme Court appointee Joan L. Larsen (who clerked for Justice Scalia) to the list.

07-20-2015 12:34

So far, these are other suggestions I've received for the pipeline (in descending order of frequency):
1. Tino Cuellar (California Supreme Court)
2. Leondra Kruger (California Supreme Court)
3. Chase Rogers (Connecticut Supreme Court)