The Volokh Conspiracy

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Supreme Court

An Opportunity to Diversify the Supreme Court in More Ways than One (Updated)

President Biden has promised to nominate the first Black woman to the Supreme Court. He should also consider a nominee with legal experience current justices lack.


As expected, Justice Stephen Breyer will retire this year. Word leaked this week that he will step down from the Supreme Court upon the confirmation of his successor, presumably over the summer. (While the switch could occur more quickly than that, it would result in some major cases being decided with only eight justices, so I doubt that will happen.)

During the presidential campaign, Joe Biden promised to nominate the first Black woman to the Supreme Court, and there is every indication that he intends to fulfill that pledge. Biden was also not the first to make such a commitment. Ronald Reagan campaigned on a pledge to nominate the first woman to the Court, and fulfilled that commitment by nominating Sandra Day O'Connor.

The appointment of a Black woman to the Supreme Court would mark an important milestone for the nation and would be in line with the Biden Administration's broader efforts to diversify the federal judiciary. There are multiple potential nominees who have the necessary qualifications and would almost certainly be confirmed. (And, for the record, I adhere to my longstanding position that the Senate should confirm any nominee who has the requisite qualifications and character; elections have consequences.)

In making this nomination, President Biden has the opportunity to diversify the Court in more ways than one. In particular, President Biden has the opportunity to diversify the range of legal experience on the Court, such as by nominating someone with substantial experience in state courts.

The current justices are all extremely well-educated and smart. All but one (Elena Kagan) came to the Court with significant appellate court experience, and she had experience with federal appellate courts as Solicitor General. Only one sitting justice had been a trial court judge (Sonia Sotomayor), and none of the current justices has any meaningful experience in state courts. That is not good.

Many of the Court's cases arise from or directly effect state court proceedings (including habeas cases), or incorporate state law claims (as occurs in some sentencing and ACCA cases). Just as having a justice with trial court experience brings an important perspective into the room, so too would having a justice that understands the reality of state court proceedings, and how state courts can differ from their federal counterparts. Justices O'Connor and Souter had such experience, but none of the current justices do.

As it happens, there are multiple qualified individuals that are reportedly on President Biden's shortlist that have meaningful state court experience. I have not studied any of their records closely enough to know which one would be the "best" from my perspective (and I am quite confident the White House is not interested in my opinion). The point here is that this nomination can diversify the Court in multiple ways, and that would be a good thing. In addition to state court experience, there are other types of experience that are also conspicuously lacking from the Court, such as trial-level criminal defense work, and this sort of diversity matters for how the Court does its work.

The White House is entitled to nominate a jurist with the President's preferred judicial philosophy and who satisfies other specified criteria. Like President Reagan, President Biden has pledged to make history with his choice. My point is that it would be good for the country and the Court if the White House were also to select someone who brings state court experience to the Court, as such experience has been missing from One First Street for quite some time.

UPDATE: While neither were state court judges, I was reminded by a reader that Justice Sotomayor did work as a prosecutor in the Manhattan District Attorney's office, and Justice Thomas worked for the Missouri Attorney General's office, including in the criminal appeals division. These experiences are significant, but neither is the same as having worked as a state court judge.

NEXT: The Right to Defy Criminal Demands: Possible Limits (Part I)

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  1. The only people who count race as a factor are racists.

    1. "No, you're the real racists" is such a dumb, boring, uncreative effort.

      Come on, man! Have some self-respect. Bring out the "they wanted to be enslaved" or "oppression breeds character" arguments.

      1. Whatever happened to "the content of their character rather than the color of their skin"?

        The FACT remains that certain people do NOT want a colorblind society. We refer to them as "DEMOCRATS".

        1. Maybe you should read the rest of the speech. Or anything else he had to say about anything.

          1. So do you prefer to judge by the color of their skin? And to apportion membership based on characteristics rather than character? How quaint. And idiotic.

            When people are judged by their actions and their merit, then we are better off as a society.

            People who keep score, are beneath contempt.

            1. No I'm saying that you need to read the rest of what MLK had to say. Because you clearly haven't.

              1. But DEMOCRATS actively work against his dream. Because DEMOCRATS.

                Or in more direct terms, FCUKING RACISTS.

                1. You have all the familiarity with King's work as could be expected from someone who said something so facile above. How about this, if you're such a fan of King and his dream maybe expend a small iota of time and effort in reading more about what he had to say. You're more transparent than a just cleaned window pane on a sunny day.

                  1. "How about this, if you're such a fan of King and his dream maybe expend a small iota of time and effort in reading more about what he had to say."

                    Why? Like many people, I find the "not be judged by the color of their skin but by the content of their character..." theme of the "I have a dream" speech quite convincing.

                    The fact that King may have made some less good arguments in other contexts doesn't change anything.

                    1. That's not only the theme of the speech.

                      Also: why would you be so proud of being ignorant?

                    2. "Also: why would you be so proud of being ignorant?"

                      Huh? I can't learn everything.

                    3. But you're literally being invited to read the things you're commenting about and you're declining. That's being ignorant.

                2. Yeah....that wasn't his entire dream. Again: read the rest of the speech. Here I'll give you a snippet:

                  "But 100 years later, the Negro still is not free. One hundred years later, the life of the Negro is still sadly crippled by the manacles of segregation and the chains of discrimination. One hundred years later, the Negro lives on a lonely island of poverty in the midst of a vast ocean of material prosperity. One hundred years later the Negro is still languished in the corners of American society and finds himself in exile in his own land. And so we've come here today to dramatize a shameful condition. In a sense we've come to our nation's capital to cash a check."

                  Also you seem to be suggesting that John Lewis, Jesse Jackson, Fred Grey, Julian Bond, etc etc. were all acting against King's dream by being Democrats. Which, um, Lol.

                  1. Jackson was/is a race hustler. Always was. Always will be.

                    1. Okay. But he was a close King associate.

                  2. For what it's worth, I've read the entire speech many times. But I guess I'm just bad at understanding it. In what way is the part you've quoted, or any other part, inconsistent with the interpretation expressed here, i.e. that we shouldn't be judging people based on their race?

                    1. "But I guess I'm just bad at understanding it."

                      Correct but you're really close with your last sentence. Notice the word, "should." It's a normative statement about how the world ought to be. But his speech overall and the context of his writings as well as the historical era clearly show it is an analysis of the world as it actually is, and an indictment of the society that produced it.

                      "Of course" you'll say. But importantly he was not suggesting that "color-blindness" was the remedy for the problems he identified. It was a dream, but being a realist he didn't think it would just suddenly happen over night if we just decided to be "color blind."

                      But the quote is trotted out by white conservatives every single time any sort of racial disparity is affirmatively addressed (like by making sure we finally have a Black woman on SCOTUS after over two centuries without one.) Which means that they don't understand King or what he believed at all.

                    2. I don't know that a pledge to nominate a black woman, or any particular race or gender of person, to the Supreme Court is judging someone by the color of their skin. It's not as if there is some perfect scale that tells us one person is more qualified or better qualified than another. Who was better qualified - Kavanaugh, Gorsuch, or Barrett? All of them were qualified. To say that one prefers a particular type of person on the Court isn't to judge them or evaluate them. It's just saying that from the pool of qualified candidates, this is the kind of person we should seek. It was fine when Pres. Reagan did it, and it's fine when Pres. Biden does it - particularly since people voted for him with the explicit knowledge that this was what he planned to do.

          2. "Maybe you should read the rest of the speech."

            Why? Just cause the dude may have made some bad arguments in other contexts doesn't undermine the good arguments he made.

            1. Why should I understand history and the context behind his arguments?! I am very smart!!!!!

              1. You can understand history and the context behind his arguments without thinking people should be judged by the color of their skin.

                1. You can't understand it by refusing to read primary sources and asking why you even have to do that...which is what you have been doing this whole thread.

          3. Let's get to the point - King got a public holiday, not for being a socialist or a defender of affirmative action, but because he helped topple Jim Crow and lost his life on that account. Generous Americans are willing to honor that without holding his lefty, "reverse racist" ideas against him.

            And he *did* give a speech which went against his "affirmative action" support. Strangely, there's lots of people who like that speech better than some the other stuff he said.

            1. Either MLK gave a really out of character speech, or there's lots of people who like to take him out of context, because they prefer the defanged myth to the actual man.

              1. Maybe he gave the speech with a mental reservation that of course the era of being judged by the content, etc. was to be placed in the indefinite future, but that's not what the audience heard.


                1. Maybe by

                  "I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character."

                  Maybe he had a mental reservation that "of course by "one day" I mean after the rapture, or after every trace of racism has been purged from the body politic, etc.

                  But the audience had every right to take the words literally.

                  Think of the Founding Fathers. If they use plain language to express a concept, their private interpretation would not prevail against the words they actually used.

    2. What a monumentally facile statement. So the person who notices that in over 200 years and 100 justices the Court has never had someone from a group that has historically made up about one out of 10 Americans is racist? The person who thinks that young black women would benefit from finally seeing someone like themselves on the Court is racist?

      I guess the United Negro College Fund is (and was, even in it's early days in the 1940s) racist.

      Don't be a simple fool all your life.

  2. I'm afraid that I have to disagree with Adler on "I adhere to my longstanding position that the Senate should confirm any nominee who has the requisite qualifications and character; elections have consequences".

    Elections do indeed have consequences; but the President isn't the only elected party involved. The Senate is every bit as elected as the President; indeed, a change in the composition of the Senate in an off-year election may be a more recent indication of public sentiment than the last Presidential election.

    The Senate also indicates public sentiment on a finer scale than does the Presidency. Once a President's in office, his winning margin and the reasons why swing voters opted for him don't affect his powers and his options: witness the current President, who was elected to be Not Donald Trump, but who's chosen to interpret his election as anointing him to be the second coming of FDR. On the other hand, there's a great difference between a Senate that's heavily weighted toward the President's party and one with a very narrow split, or even one where the opposite party holds a majority. In the latter case, they can and should reject a nominee whom the President's chosen to appease the extreme wing of his party, even if that nominee has a perfectly good Ivy League law degree and no known criminal history.

    1. Thanks for doing a good job of sparing me the need to make exactly that point: Elections don't have consequences if they're Senate elections?

      1. These were exactly the points I would have made, too. Thank you.

        I’d only add that presidential nominations—and especially judicial nominations—are not exercises in pure meritocracy (“The Senate should confirm any nominee who has the requisite qualifications and character.”). The nomination and confirmation of Article III judges, Ambassadors and Officers of the United States are political acts. If Adler and like-minded Progressives want to change our form of government to a bureaucratic technocracy staffed by merit-based experts, then they should propose amendments to our Constitution.

        I am also not aware of any historical basis for the assertion that the Framers “required advice and consent [of the Senate…] to prevent patronage.”

        1. Just yesterday some commenter accused Adler of saying something insufficiently libertarian. Today we have you calling him a progressive. If you think he's a progressive, or libertarian, you haven't been paying attention. Or you're new here...

    2. Obviously the Senate can vote any way it wants for whatever reason it wants, but the framers required advice and consent to ensure qualification and to prevent patronage. It wasn't intended to essentially give the Senate the power to choose the nominee which is what is inevitable if you follow the rationale of them having carte blanche in their decision.

      That is why for all but the last few decades nominees were almost always all bout unanimously confirmed. There were very few that faced any resistence and then it was for some identifiable incident, not judicial philosophy. The process has broken down considerably from both democrats and republicans to the point that basically none will ever vote to confirm someone who is nominated by the other party. That isn't a good way to function.

  3. Dotard certainly supported Janice Rogers Brown! Because Equality!

  4. Are there any qualified black women available. Jackson on the DC circuit has been mentioned, yet reports on her is that she is less than mediocore. A level of mediocorcy that would make Sotomayer look stellar.

    1. "Are there any qualified black women available. "

      Yes. If you don't think there are that's a you problem.

      "Reports on her is that she is less than mediocre"

      Were these reports made by mediocre white men with blogs like Ed Whalen who have an ideological and partisan bias to make Biden appointees look dumb? Could it also be a racial bias that they tend to see liberal black women as dumb automatically?

      I think you might need to ask yourself some tough questions about how willing you are to just accept claims from partisans that minority women are unintelligent.

      1. Or it could be that simply an idiot tends to surround himself with idiots?

        Look at who that idiot picked to be his VP - another idiot.

        Biden and his appointees don't need any help to make themselves look dumb.

        1. Boy you're being an ass today. You should go to Newsmax. They love racism and pejoratives over there.

          1. Just because you don't like what I am saying does not make me a racist.

            President mush-for brains was my Senator when I lived in Delaware. He was an idiot back then and has not aged well.

            1. No. Your racism makes you a racist.

              1. Ok, how the fuck has he been racist? I don’t think a lot of what he’s said but racist?

                Criticizing VP Harris is racist? She’s appallingly incompetent and in way over her head. Saying that is racist? I also think exactly that about Blinken. I guess I hate whites now?

                “Racist” has been thrown around so much over the last half decade that it’s become untethered from any real meaning.

    2. A diverse will be very reliable. It will be an Ivy indoctrinated agent of big, dumb, ineffective, rent seeking government, pro-crime, pro-abortion, especially of black babies, pro-regulation quackery, pro-high government control and command of the economy. It will support making the US into Venezuela. Blacks will suffer most at its hand.

      1. See, this totally accurate statement is why David should not be muted.

    3. Could you cite to some of the reports you have in mind?

    4. Many people say, eh?

  5. Brown Jackson: another trial court judge is definitely needed. Public defender, needed even more.

    Kruger: State court! We need state court experience. Sure it was straight to the Supremes, but man is that lacking.

    Not needed: law professors

    1. That's not entirely fair.

      While I would support having a judge with significant trial court and/or state court experience on the Supreme Court, as I feel that is lacking, I also think that you can have a decent jurist with an academic background. Kagan had a strong background in academia before the Supreme Court, and she and Roberts are probably the two best jurist on the bench right now.

      That said, the vast majority of academics make poor judges because they have no idea what the practice of law actually entails, which is kind of important when it comes to judging.

      1. Fair. I should say, not needed now. We have three academics now. Although Breyer will be replaced, we really don't need a third between Barrett and Kagan.

      2. While I disagree politically with Kagan, she is by for the most qualified of the judges on the liberal side of the bench, & she is in my opinion quite well qualified to be on the SC.

  6. "She's only on the Supreme Court because she's black!"

    Winning message, Democrat Racists.

    1. ACB is only on the Court because she's a woman who doesn't like Roe.

      1. That's sexist

        1. It's also true. Trump said he'd appoint a woman. She was the youngest and most prominent woman out there with conservatives bona fides.

          And if that's sexist...then you're going to have to admit you're both racist and sexist because that's what you're gonna say about Brown-Jackson or Kruger.

          1. Brown jackson is simply not qualified, in comparison, she will make Sotomayer look impressive.

            1. *Sotomayor

     She went to Harvard and graduated with honors twice, was on law review, clerked at SCOTUS, has private practice and public criminal defense experience, has extensive trial court experience (Barrett had much less legal experience).

              Just say you think she's dumb because she's a black democrat and you think black democrats are automatically dumb. It'll be liberating and more truthful.

              Like seriously, you're a mediocre man posting on a blog. She has had much more accomplishments than you. Who are you to say she's unqualified?

              1. Sotomayer's jurisprudence speaks to her mediocracy

                1. *Sotomayor

                  Seriously, if you are going to attack someone much more accomplished than you as "mediocre" getting their name right would be beneficial to your credibility on the subject.

                  Also, again, Clarence Thomas and Neil Gorsuch are such geniuses that they think Gideon and International Shoe were wrongly decided. So who are the real mediocrities on the Court?

                  1. Sotomayer's behavior in Ricci is more than sufficient to show she was never qualified to sit on the highest court, contrary to the high credentials you keep referring to.

                    Her writing that discrimination ' the preferred kind of discrimination" is constitutional and as such a state constitutional amendment to ban such discrimination is therefore unconstitutional is further proof she lacks fitness for the high court. Shutte v Bamn

                    1. SOTOMAYOR. GET IT RIGHT.

                      And you have the same fucking complaint. Behavior in Ricci? Oh the mean lady asked some hard questions? wow.

                      Schutte again? C'mon man. I'm starting to think you don't even know who she is and have never read another one of her opinions.

                      Just admit that you think minority women are dumb , especially if they're Democrats. That's clearly what you think. Just admit it.

                    2. And you have the same fucking complaint. Behavior in Ricci? Oh the mean lady asked some hard questions? wow.

                      I don't know what Joe_dallas was referring to, but Sotomayor's antics in Ricci were not problematic because she asked hard questions. They were problematic because they abused procedure in an attempt to bury the case. Whatever one thinks of the proper outcome in Ricci, the case obviously presented an important and complex question. And yet Sotomayor's panel first disposed of the appeal with a one-paragraph analysis-free summary order to shield it from review. Unlike, say, Armchair Lawyer, I assume you're a lawyer. So you know what summary orders are for.

                      When it seemed as though some fellow circuit judges weren't satisfied with that, the panel as a big FYTW replaced the summary order with an identical one paragraph per curiam denial of the appeal, thus converting the decision to precedential, without undertaking any legal analysis at all. The paragraph didn't even mention that there were any constitutional claims, let alone address them.

                      It's difficult to view their actions as anything but an attempt to evade appellate review.

          2. Not quite.

            Trump revealed a list of 40 odd potential nominees he'd choose, of which ~25% were women. After his first two nominees (White men FTR), for his third nominee, he likely narrowed down his previous list and only women ended up, after the second cut.

            That's very different from the initial list only being "Black women"...a much narrower pool.

              1. None of which contradicts what I said.

                1. You're trying to pretend Biden is breaking some taboo....when Trump did the exact same thing. (Reagan too FWIW)

                  1. You keep trying to contradict what I said. And failing.

                    1. You said it was sexist to point out that ACB was only nominated because she was a woman.

                      I pointed out Trump explicitly said that's what he was going to do.

                      You tried to steer it to his "list" prior to being President, which doesn't detract from my point that Trump literally said he would pick a woman to fill Ginsburg's seat. Which is exactly what Biden is doing for Breyer. So you have to admit that Biden is just doing the same thing Trump did but can't!

                    2. No, Trump said he narrowed down his potential option to a women. Presumably after looking at his list of potential options, and narrowing to a top 5 or so, all of whom happened to be women.

                    3. Lol. You're so credulous its unbelievable. You think Trump was carefully narrowing down a list...instead of jumping right to Barrett as soon as Ginsburg died?

                    4. ACB has been near the top of Trump's list for a while. Neil and Kav were ahead of her.

                    5. Because he was saving her for when he expected Ginsburg to die. Seriously, stop being so credulous to defend Trump for doing the EXACT SAME THING BIDEN IS DOING.

                    6. Presumably after looking at his list of potential options, and narrowing to a top 5 or so, all of whom happened to be women

                      You cannot possibly be dumb enough to think that we're dumb enough to think that you actually believe this.

                    7. Ahahahaha.

      2. LTG, try to control your misogyny. It’s really showing today.

    2. I don't know. It didn't seem to hurt the GOP with Thomas.

  7. Prof. Adler and Biden are more or less on the same wavelength.

    Republican Senators are not.

  8. Professor Alder makes a very good case here. I remember that Justice Sandra Day O'Connor in her term was, at one time, the only Justice on the Court to have experience running for office. This meant she understood the pressure of running, something her colleagues on the Court did not have.

  9. Any former criminal defense attorneys on the list? For low paying clients, I mean, not millionaires.

    1. Brown Jackson was a public defender.

  10. " In addition to state court experience, there are other types of experience that are also conspicuously lacking from the Court, such as trial-level criminal defense work, and this sort of diversity matters for how the Court does its work. "

    A magnificent point, Prof. Adler. Thank you for making it.

  11. Seems to me the most important prerequisites for qualification are a background in Constitutional Law scholarship, and 18th Century English. Expertise in the history of The Enlightenment, specifically it's philosophical history, and an intimate knowledge of the Federalist Papers is necessary as well.

  12. A lot of commenters attracted to a remarkably White, odds-defyingly male blog seem extremely focused on issues of race and gender.

  13. The two leading candidates are double Ivy, like 6 of the remaining 8.

    Only one justice will not have gone to Harvard or Yale or both.

    Its asinine that two tiny schools n the northeast have such a stranglehold on the court.

  14. Here's the deal.

    I think having the qualifications for the appointment to the SCOTUS being "I want a black woman to be nominated" is both sexist and racist in many respects. Choosing a person BECAUSE of their gender and the color of their skin is wrong. Explicitly saying "I'm going to choose a white male for the SCOTUS, because they are white and male" would be viewed as racists and sexist. Likewise, "I'm going to choose a black woman for the SCOTUS because they are black and female" should be viewed the same way.

    Personally, I'd pick Sri Srinivasan for the SCOTUS if I was Biden. He's got bipartisan respect, an excellent record, an excellent reputation, and is most qualified, period. His race, religion, and gender play no role in the decision.

    Judge Ketanji Brown Jackson is frankly...inexperienced, especially in comparison to Srinivasan. She's got maybe 1/2 a year on the circuit court. She's divisive politically, unlike Srinivasan. When comparing the two, any fair competition would have Srinivasan win. Unless you need to factor in race and gender.

    1. "Judge Ketanji Brown Jackson is frankly...inexperienced."

      LOL. She has much more actual legal experience than Barrett had. Actual practicing lawyer and trial court judge instead of an academic who was on the seventh circuit for barely three years.

      1. So, you've done a few things here.

        1. You changed the comparison to ACB, as oppose to Srinivasan. My comparisons were to Srinivasan, an appropriate choice for Biden

        2. But if you look at ABC, you've changed the type of experience. Purely considering Circuit Court experience, ACB has far more than Jackson. 3 year, compared to perhaps 6 months. 6 Months is short. Real short.

        1. I know you're an "armchair" lawyer (obviously) but what if I told you....being a circuit court judge is not the end all be all of legal experience relevant to SCOTUS? That SCOTUS actually needs people who understand how trial courts work and how lawyers practice, or gasp!, have state court experience too. And in fact, having too many justices straight from the circuit courts is actually bad because the perspective is so narrow.

          1. Your ad hominem insult aside, if you indeed argue that "having too many justices straight from the circuit courts is actually bad because the perspective is so narrow"...

            That would argue against Judge Jackson because she would be "straight from the circuit court". And doesn't have any state court experience.

            1. Not an ad hominem if its true. And you just said she lacked circuit court which is it?

              1. I said she has just 1/2 a year on the circuit court. Not the same. She would still be "straight from the circuit court" which you claim not to like.

                And you clearly don't know what an ad hominem argument is.

                1. You are not a lawyer, correct? Which means you lack a lot of insight into the legal system, correct?

                  1. As I mentioned. You don't actually know what an ad hominem argument is.

                    1. No I do. It's just appropriate and correct in this instance. You deserve it because you have no experience which hence means you don't know what you're talking about at all. '

                      Like seriously, thinking KBJ's record is "thin" GMAFB.

                    2. Again, there are multiple flaws in your argument, and you don't understand what an ad hominem argument is, which is why you insist on making the same flaws.

                      But let's address a few points.

                      1. An ad hominem argument attacks the speaker. It can be true or false, but it's still an ad hominem. For example "Based on my experience as a doctor, this person has this disease". "But you're not a doctor, so your argument is incorrect"... That's an ad hominem argument, one that happens to be correct. It's still an ad hominem argument.

                      2. The assertion you're making (incorrectly) is that someone that doesn't have legal experience cannot accurately judge the amount of legal experience someone else has. It's extremely flawed, and you're basing it on an assumption that I don't have legal experience.

                      3. If you wanted to further the argument, you could say that someone without judicial experience couldn't judge the amount of judicial experience the person had. But then you'd be ruling yourself out, which you clearly don't want to do.

                      4. But ultimately, the fact is, someone without legal experience CAN look at the CV of other individuals and judge the amount of legal experience they have. They can count, and compare 6 months on a court, versus 3 years on a court, versus 8 years on a court, and judge that the person with 8 years experience has more experience than the person with 6 months experience. Which is ultimately why your ad hominem fails.

                    3. "But ultimately, the fact is, someone without legal experience CAN look at the CV of other individuals and judge the amount of legal experience they have. They can count, and compare 6 months on a court, versus 3 years on a court, versus 8 years on a court, and judge that the person with 8 years experience has more experience than the person with 6 months experience."

                      This is actually incorrect. And demonstrates you don't have the credentials or understand the legal system to be a worthwhile commentator. See you are focusing on circuit courts. Circuit Court is not the only experience relevant to being a justice. You left out trial court judicial experience, state supreme court experience, appellate lawyering experience, trial lawyering experience, experience in private practice, experience in government, experience in criminal law including defense, and yes experience in academia.

                      Barrett had clerking, some private practice, academia, and some circuit.

                      KBJ has clerking, private practice, public defense, trial court judge and recently, circuit court judge. It's much more varied and practical than Barret.

                      Kruger has been on a state supreme court and practiced in front of SCOTUS as SG as well as private practice and clerking. Much more experience than Barrett despite being younger.

                      So you actually have no idea how to assess these candidates if you think adding up circuit court years means anything. You are out of your element, and won't admit it.

                    4. This always reminds me of the parents who are like, "YOU DON'T KNOW ANYTHING ABOUT KIDS, BECAUSE YOU AREN'T A PARENT."

                      When it's like, "Mam. I can see your kid running around yelling, screaming, and acting like a heathen. I can tell when a child is being bad."
                      And their only response is "YOU DON"T UNDERSTAND!!"

                    5. Well, 1) being a parent is they're right. 2) He clearly doesn't understand! He's just adding up circuit court years like that makes him smart or insightful, but it demonstrates he has a facile understanding of the legal field and what makes a qualified judge or justice.

                    6. So, your view is someone with 6 months experience has more experience than someone with 8 years experience?


                      Yes. I'm focusing on circuit courts. As was explicitly mentioned. If you want to quantify some other experience, in quantifiable metrics, then do so. You haven't.

                  2. Well, 1) being a parent is they're right.

                    Yeah-No. It doesn't take a parent to know when a kid is acting a fool. That's idiotic. I am a parent (soon to be of two!), and I promise nothing magical has happened that kept me from knowing when a parent was sucking at keeping their kids in line lol.

              2. Ad hominem “an argument directed against a person rather than the argument they are making”.

                True doesn’t enter into it.

                1. Indeed. It was one of the primary flaws, and was why LTG didn't really understand what he was talking about.

                  1. I understand much more than you. You think wrong things like the January 6th Committee will be arrested for making false statements under 1001, and think that you can judge credentials just by adding up years on a circuit court. You probably chose your handle ironically....but its so manifestly true it's hilarious.

    2. I'd pick Sri Srinivasan

      Read less Ilya Shapiro

  15. The sad truth here is that what Biden is about to do doesn’t matter. He could put nine black chicks on the SCOTUS, make every one in his administration a black person, and play rap music during his state of the union

    After the ceremonial and dutiful “ it’s historical” gibberish from the media et al, the race card will never vanish. Too valuable. It keeps the blacks on the
    Democrat’s voting plantation.

    1. Congratulations, you've figured it out. Black people secretly love racism!

  16. I agree with all of this, except the idea that the Senate should generally confirm any nominee who has the requisite qualifications and character. Presidential elections have consequences, but so do Senate elections. The Constitution allows Congress substantial leeway in how short a leash it wants to put on the President. The main limiting factor is the ability of the opposition party to muster the necessary majorities. If McConnell has the votes to block any & all nominees, I don't see why he shouldn't send the White House a list of acceptable nominees and invite the President to pick one. The issue is, of course, that he doesn't.

  17. He'll nominate Barack Obama

    1. What makes you think he'd accept? I think ex-President is a pretty good gig.
      BTW I think Michelle Obama while lacking some experience would be a good justice.

      1. Why would Michelle Obama want to be writing ERISA opinions well into her 70s?

      2. Why give up being crazy rich retirees?

  18. What about veterans? There used to be plenty on the court but no longer. Although Justice Alito completed a stint in the Army Reserves (was not sent to Vietnam), and Justice Breyer served a brief six month period on active duty in 1957, there are no combat veterans on the Supreme Court. The last justice to have actual wartime military experience was Justice Stevens, who retired in 2010.

    1. I think it's a function of the absence of a draft and the presence of a modern career path (not just restricted to the law) which encourages a very narrow and limited range of employment.

  19. Having a black female justice may move the court to give less deference to those government agents known as the police. Perhaps the court will be more aggressive in removing the activist principle of qualified immunity.

    1. You've already got Thomas openly advocating for this. I wonder how Breyer voted when it came to accepting the last QI case.

  20. Isn’t there, somewhere, a female black of Native American descent who’s a transsexual, non-Christian type that didn’t go to Harvard/Yale and that espouses both originalist-and developing-constitutional jurisprudence ?

    We could check all the boxes in one shot.

  21. It would be nice if we could get someone who has experience as a public defender. That would be a real feather in Biden's cap.

    1. Brown Jackson has it! That's what I like most about her tbh.

      1. Then I'm in favor despite the fact that she is probably diametrically opposed to my own political philosophy. ( I say probably because I don't know what her political philosophy is. I just can't imagine Biden nominating anyone who isn't opposed to my political leanings.)

  22. I think it is important that, not only should the new Justice be black and identify as female, she should also be LBGQTXYZ+. Legal knowledge or experience definitely should not be a factor in the appointment for her learned experience should be sufficient in making decisions.

    1. How do I say I have no respect for a large number of people without actually saying it?

      1. The important point is that these bigoted, cranky old conservatives continue to be replaced in our society and electorate -- by better, younger, more diverse, more tolerant, less rural, less religious Americans -- as our nation continues to improve.

    2. Mockery of this sort is diminished when the writer is sloppy with word choice - the correct term is, "lived experience."

  23. Much of the pundits have said that they expect the resignation to be contingent on the nomination and confirmation of a successor, but is that even constitutionally valid?

    Could a resignation be contingent on the nomination and confirmation of an _acceptable to the resigner_? How about "on the nomination and confirmation of "?


    1. The same thing occurred to me. I don't think one can legally "step down from the Supreme Court upon the confirmation of his successor." There is only "step down."

      How can the President and the Senate even consider a nominee without a vacancy? What if after the confirmation Breyer 'changes his mind,' for whatever reason?

      Total rubbish.

    2. Justices Stevens and Kennedy gave specific dates when their retirements would become effective in their letters to the president. But Justice O'Connor instead said she would retire "upon the nomination and confirmation of my successor." And it ended up to make a difference since she carried on after Rehnquist died and Roberts, who was originally nominated to replace her, was nominated to replace the Chief.

      1. And right on queue, Breyer goes the O'Connor route (sort of):

        I intend this decision to take effect when the Court rises for the summer recess this year (typically late June or early July) assuming that by then my successor has been nominated and confirmed.

        . I would love to hear Justice's Breyer's long-winded question at oral arguments about what happens if no one is confirmed by the summer recess.

    3. For extra fun, could the President nominate and the Senate confirm a new Justice who shall take office upon the occurrence of the next vacancy?

      Presumably a future President would be able to undo such a thing, but still...

      1. Very, very unlikely. 28 U.S. Code § 371(d) states:

        The President shall appoint, by and with the advice and consent of the Senate, a successor to a justice or judge who retires under this section.

        It is almost certain, this statute will be construed to require a formal retirement pursuant to this section prior to an appointment.

        1. I agree that would be a bit of a stretch.

          Next question: What if Congress amended that provision?

    4. Sorry, I botched the HTML.

      Could a resignation be contingent on the nomination and confirmation of an _acceptable to the resigner_ replacement?

      ... How about "on the nomination and confirmation of _a particular choice_"?


  24. It occurs to me that making it a goal to appoint a black female Supreme Court justice is illegal. (It's also racist, and sexist, but let's skip that for now.)

    "he laws enforced by EEOC prohibit an employer or other covered entity from using neutral employment policies and practices that have a disproportionately negative effect on applicants or employees of a particular race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), or national origin, or on an individual with a disability or class of individuals with disabilities, if the polices or practices at issue are not job-related and necessary to the operation of the business. "

    Is the SCOTUS a "covered entity?" I would hope so.,)%2C%20disability%20or%20genetic%20information.

    So, Biden is breaking the law by saying he will appoint a black female to this position.

    1. That assumes Congress can by statute regulate the President's constitutional power to nominate justices. I'm broadly OK with that, but I think most American constitutional experts would not be.

    2. Is the SCOTUS a "covered entity?"

      No, of course it isn't. The covered portions of the federal government are

      military departments as defined in section 102 of Title 5, in executive agencies as defined in section 105 of Title 5 (including employees and applicants for employment who are paid from nonappropriated funds), in the United States Postal Service and the Postal Regulatory Commission, in those units of the Government of the District of Columbia having positions in the competitive service, and in those units of the judicial branch of the Federal Government having positions in the competitive service, in the Smithsonian Institution, and in the Government Publishing Office, the Government Accountability Office, and the Library of Congress

      42 U.S.C. § 2000e-16(a).

      1. You neglected this:

        (b)Notwithstanding subsection (a)(1)(B) of this section, the “competitive service” includes positions to which appointments are made by nomination for confirmation by the Senate when specifically included therein by statute.

        United States Code (5 U.S.C. 2102)

        1. "...when specifically included therein by statute.

          Which hasn't happened, so it wasn't neglect. It was including only what is relevant. If and when SCOTUS Justices are added to the cite, you may revisit.

        2. Are you suggesting that there's a statute that purports to "specifically include" Supreme Court justices in the competitive service?

  25. Biden should take all illusion out of the nomination and just nominate a RUBBER STAMP. If it's good quality and taken care of it could be ruling in favor of the government for the next 50 years without fail.

    1. I guess that's one of those "accuse the other person of what you yourself are doing" things that Republicans learned from Trump...

  26. I find Adler’s view of legal diversity to be ridiculously narrow. I don’t think it’s really diversifying to add a STATE appellate judge to a bunch of federal appellate judges. That’s not legal diversity at all.

    REAL legal diversity would be adding a trust & estates lawyer. Someone who has closed a complex real estate transaction. An ERISA attorney. Someone who defends mass tort claims.

    It was that long ago that Supreme Court justices didn’t even have to go to law school. Now they almost always go to a top 5 school, and clerk for the right judges, and become a judge on the circuit court (DC preferable). Remarkably narrow.

    1. Patent/intellectual property. Huge area with a lot of consequences, but I don't think one with significant experience in that area has ever been on SCOTUS.

      1. Any judge with that experience would almost certainly come from the Federal Circuit, and that is a messed up Circuit.

        1. Whenever I start to think that specialty courts with an expertise in certain subjects would be a good idea ...

          I remember the Federal Circuit, and am quickly disabused of that notion.

        2. Do we know how the FC got like it is?

      2. Interestingly, twenty years before he became a Justice, Breyer wrote what is now regarded as a widely influential Harvard Law Review article positing that patent/intellectual property (and especially copyright) restrictions should be viewed with far more skepticism than was the case at the time.

        Search on: "The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs"

        He, along with Justice Ginsberg, were the only two Justices consistently demonstrating strong interest and knowledge in the topic.

    2. It was [recte wasn't?] that long ago that Supreme Court justices didn’t even have to go to law school.

      There's no formal requirement that supreme court justices (or any other federal judge) have a law degree. Or even that they be lawyers, for that matter. However, the last justice to not have a law degree was appointed in 1941, and he did attend law school: the last justices who didn't have any formal legal education was appointed in 1898. That seems pretty long ago to me!

  27. Important milestone...please. Pretty soon it will be an endless quest for meaningless characteristics.

  28. The best thing for McConnell to do is to let the filling of this vacancy pass as quickly as possible. And while it might piss off some of the right wing, it would be good for the next justice to get confirmed with an overwhelming majority. It would really piss off the Dems if they can't bitch about GOP obstruction.

    1. Good point. On the other hand, I suspect McConnell is like the scorpion in the fable. But let's find out!

    2. Wouldn't matter to Democrats, they'd bitch about obstructionism regardless. Personally I'm all for giving Biden's nominee the Miguel Estrada treatment that the Dems dished out.

  29. In the higher reaches of the political system, by which I mean

    (1) elections and

    (2) elected officials making appointments to major political positions (like Supreme Court justice, for instance)'re going to have people taking race into account, and even if we call it wrong in principle, it would be tough to eradicate.

    That doesn't mean we have to put up with racial discrimination lower down the ladder - college admissions, jobs, contracts, etc.

    But with elections and political appointments, it would be more fruitful to discuss the pluses and minuses of the particular situation where a racial motivation is involved, rather than freak out, Captain Renault style, to discover racial politics going on.

  30. If they really want diversity on the Court, they should get a jailhouse lawyer - maybe a graduate of the Prison-to-Law Pipeline program. Black women like Maureen Onyelobi, who have gotten their degrees - and taken the LSAT - while in prison, would certainly bring a new perspective and a different set of "lived experiences"!

    Of course, Ms Onyelobi herself is probably unavailable, since she is currently serving a life sentence without parole for premeditated murder.

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