Leondra Kruger to the D.C. Circuit?

A consolation prize for the short-list-runner-up?

Assuming that Judge Ketanji Brown Jackson is confirmed, there will be yet another D.C. Circuit vacancy. Would President Biden nominate Justice Leondra Kruger of the California Supreme Court? Presumably, that confirmation would put her in a much stronger position to fill the next Supreme Court vacancy. In hindsight, Kruger may have gotten burned by twice-declining the Solicitor General nomination. Moving to the swamp could put her in a better stead with the administration.

Comments

[LawTalkingGuy]

DC Circuit fetishism.

It’s a step down. I’d much rather be on the court of last resort for the largest state in the country whose rulings are influential in a wide variety of areas of the law. Roger Traynor did more to shape the law on the California Supreme Court than pretty much any DC Circuit judge who never got to SCOTUS. (Maybe Bazelon is an exception?)

I think the only attraction is life tenure. Because politics could change one day and she could lose her seat eventually. But other than that, I don’t see it why you’d do that.

[Cal Cetín]

Pretty much my thoughts, but I would add:

California is a member of the Union, with all the dignity and authority that implies. It would therefore be insulting to suggest that it's a promotion to go from a state high court to an inferior federal court.

[LawTalkingGuy]

I mean there's some truth to the idea that a federal circuit is more prestigious and influential than a state supreme court. But it really depends on the state. South Dakota Supreme Court to 8th Circuit? Definitely yes. California Supreme Court to DC or 9th? Questionable whether that's actually a step up.

[Jon S]

I mean all the federalism speak re the equal sovereign dignitude of California is kind of cute, the precedent is very much there for a California Supreme Court Justice (a black woman too!) to get appointed to the DC Circuit. George W Bush did exactly that and the Justice, then Judge, took the appointment.

[Cal Cetín]

So she did, and what a sad commentary it is that this was deemed to get her closer to the Supreme Court - which as a matter of fact hasn't happened.

[Cal Cetín]

Justice Cardozo went from the New York high court straight to the U. S. Supreme Court. Should he have cooled his heels first on the circus court?

And Mephistopheles himself, Oliver Wendell Holmes, went from the Bay State's high court to the Supremes.

[Cal Cetín]

"equal sovereign dignitude"

I deliberately avoided the term "sovereign" because it's kind of divisive in this context.

[Cal Cetín]

No, even a high court judge in South Dakota ought to outrank an 8th Circuit judge. I wouldn't want a circus judge seated ahead of a state high court judge at a dinner party, for example.

[Michael P]

Q: What do Bill Gates, Judge Kruger, and Arnold Schwarzenegger have in common?

A: They've never attended my dinner parties. So I don't know the proper order to seat them.

[Rev. Arthur L. Kirkland]

Any judge in South Dakota is roughly at the level of a magisterial district judge in a large, advanced state.

What are there -- a thousand lawyers in the entire state?

[Cal Cetín]

Only 1,000 lawyers? How will poor South Dakota ever survive?

[mse326]

It might be fetishism but it exists in spades in Washington. So if she wants to be a Supreme Court Justice, this move would definitely increase her chances

[LawTalkingGuy]

That's definitely true. Probably why Janice Rogers Brown left CA Supreme to go to the DC Circuit (although given her conservatism, the life tenure is really attractive to someone who probably noticed CA was moving leftward).

[Ridgeway]

I don't see another progressive black woman getting nominated to the SCT in our lifetimes (absent some sort of tragedy with KBJ). Too many other interest groups will need to be catered to.

[Nisiiko]

They clearly need an LGBTQDJKVCWWQZ man/woman.

[Rev. Arthur L. Kirkland]

Do you have the self-awareness to recognize that you are an obsolete bigot, Nisiiko?

Are you proud of attracting so many bigots to your blog, Prof. Volokh?

[DaivdBehar]

Excuse me, Artie. The resignation, please. Or STFU. You need to be replaced by a diverse. You are an old, white, male, supremacist, Boomer. Nothing is more offensive. Get out of your job.

[Rev. Arthur L. Kirkland]

How many (intolerant, old-timey) white males do you envision among the remaining nominees of our lifetimes?

[Bored Lawyer]

I generally agree with you. But Roger Traynor left the bench in 1964. Quite a while ago. The influence of federal vs. state courts has shifted considerably since then.

Can you name a state court justice (or, in NY, judge) in the last 20 years that has been as influential?

[Bored Lawyer]

Sorry, he left the bench in 1970. Still over 50 years ago. So the point and question still stand.

[LawTalkingGuy]

This is a good point and you’re right that 1) federal court prestige and influence has increased a lot in 50 years and 2) that we don’t have big names in state court judgeships. (Maybe there are a few who certain circles consider big or notorious, but not a lot of nationwide recognition to be sure).

But I’d still contend they CA Supreme Court is more influential than DC Circuit for a few reasons:

1. In the biggest federal law cases, DC Circuit is just a pit stop on the way to SCOTUS. By contrast CA Supreme is the final word on state law.

2. Following on point 1, California is huge. One of the largest economies in the world. So a major court decision on a state law issue like torts, contracts, property, insurance, or utilities regulation, etc is gonna have a larger immediate effect. As binding precedent it can transform the state and also the rest of the country as people adapt to California rules. And even outside of that, the potential to influence other courts in these areas is much larger than federal courts, particularly the DC Circuit.

3. State constitutional law is likely going to become more prominent in blue states or states with blue/purple courts. With an increasingly conservative US Supreme Court, people will turn to state con law in the areas they can to secure the results they want.

[Jimmy the Dane]

If you want to get ahead in politics on either side of the aisle, you need to relocate to the swamp. It is the only way that will generate personal success if that is your mission. (Or you could do something worthwhile with your life, but that is your choice...)

[Rev. Arthur L. Kirkland]

Do you sense Prof. Barnett, or Justice Thomas, or Justice Alito, or Justice Kavanaugh, or Ted Cruz, is doing anything worthwhile in life?

Do you think it is more noble to teach at a diploma mill in South Texas, or to settle in backwater America, than to serve government in our nation's capital (or Capitol)?

[DaivdBehar]

If in Washington, you are a thieving rent seeker, and a scumbag who needs to be sent to camp.

[Jimmy the Dane]

Depends if you think enraging childish liberals is a life objective you want to dedicate yourself to....

[bernard11]

Probably true.

Pretty much the case in industry as well. You're always better off career-wise being at the center of the action.

[Rev. Arthur L. Kirkland]

The swamp?

Disaffected anti-government cranks are among the most deserving culture war casualties.

[Ben_]

He will need to hurry it up a little. Very few judges are likely to be confirmed between Jan 2023 and Jan 2025.

[Michael P]

Breyer is expected to retire when the term ends, which leaves plenty of time before elections. It's not like any Senator will actually change their mind between now and November based on confirmation hearings.

[Flight-ER-Doc]

Will she be another asterisk appointee?

[Rev. Arthur L. Kirkland]

Like Kavanaugh? Barrett?

[Alpheus W Drinkwater]

William Cushing? Washington made his nominations to achieve regional balance on the court, he did not pick the six most qualified people. Cushing was no Sri Srinivasin.

[bernard11]

Ah, Alpheus. But regional diversity is an entirely different matter. Don't you understand?

[grb]

Yep. With some people, the asterisks only come out when there's a square-inch of dark skin involved. Did anyone on the face of the Earth believed Barrett was the most qualified? No. Did anyone care? No again. Certainly not Ilya Shapiro, who praised her "thoughtfulness and grace" in a CBS interview and her "graciousness and charm" in another (NYT). Apparently no asterisks are required with a very nice white woman.

Will Shapiro opine on Judge Jackson's niceness? We'll see, but I'm not holding my breath...

[grb]

Blackman : "Moving to the swamp could put her in a better stead with the administration"

Says someone whose every effort in life is aimed at getting in "better stead" with his particular corner of the swamp.

[BadLib]

fill the next Supreme Court vacancy

Since we now limit the pool of candidates based on race and gender in order to achieve "balance", it seems that Kruger wouldn't even be on the long list to replace any Justice except Thomas or Jackson. If she were to be appointed, 33% of the bench would be black and that's way out of scale to the population where blacks are about 13%. With Thomas, blacks have an 11% representation on SCOTUS and that's as close to balanced as possible with nine Justices and blacks will be way over represented when Jackson is appointed which will tip black's representation to 22%.

The next nominee, presumably, will be a woman of mixed hispanic-asian heritage as that would kill three birds with one stone and get the Hispanic representation and Asian representation as close to the general population as possible with one appointment.

This is, of course, presuming that the Republican President who takes office in January 2025 with the Republicans in control of the Senate doesn't revert to the practice of (at least publicly) seeking the best qualified candidate rather than the most "politically correct" candidate.

[Alpheus W Drinkwater]

If the next Republican President were to do that, it wouldn't be reverting, since it has never been the practice of "seeking the best qualified candidate." I'm not even sure that phrase has any objective meaning. George Washington had 6 nominations to make, and he did not select the 6 he thought were most qualified. He balanced the nominees based on geographic regions.

[Rev. Arthur L. Kirkland]

Which Republican nominee was the "best qualified candidate?"

[Publius_2020]

I don't think it's a question of "representation," so much as the Democrats' obsession with picking based based on the political value of identity-based "firsts." In the wake of all the "no Asians need apply" issues they have faced this year, it seems likely that they will have to address that. Then there will be the inevitable call for a gay Justice. Then someone will note that there has never been a male Hispanic Justice, and only one Hispanic ever -- despite Hispanics outnumbering blacks in the population.

In short, I can't see the Democrats exhausting their list of political "must choose" candidates in the next 10-12 years. (The only real hope would be if the GOP helps them out and picks some of their required 'firsts' for them.) And 12 years from now, the Dems are unlikely to choose Justice Kruger because of her age. So the sad reality is that an exceptionally qualified candidate will probably not get back in the queue for selection.

[Alpheus W Drinkwater]

Yeah, why don't those dumb Democrats just stick to appointing white people like any self-respecting Republican would do.

[mtkesq]

I would have loved to have seen Joe Biden nominate Gregg Costa to the Supreme Court. He is more than qualified as a Jurist and he would make the Texas Senators squirm.

[Free Exercise]

“Presumably, that confirmation would put her in a much stronger position to fill the next Supreme Court vacancy.”

The next Supreme Court vacancy is unlikely to be during the Biden Administration, unless health problems cause someone to leave early. Thomas & Alito are the next oldest Justices at 73 & 71, which should give them 10-15 years before they’d have to face the presumably unpalatable prospect of leaving when a Democratic President might appoint their successor. The more immediate questions are whether they would consider retiring during the term of a GOP President elected in 2024? And at what point does 67-year old Sonia Sotomayor get ‘the Breyer treatment’ since her diabetes puts her at greater actuarial risk?

Kruger is young enough to have another decade as a Justice-In-Waiting, but the chances of a vacancy in that period, along with a Democratic President (and Senate?), are not that great.