Last Friday, conservative
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.]