The Volokh Conspiracy
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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.
