A Preference For Non-Judges on the Supreme Court of Texas?

Governor Abbott's recent appointments to SCOTX did not come from the bench.

In the past, prior judicial service may have been seen as a stepping stone for a federal judgeship. For example, during President George W. Bush's administration, many district court judges were later elevated to the circuit court. Not so now. During President Trump's second term, all six circuit court nominees have lacked any prior judicial experience.

And we may be seeing a similar trend in Texas. Governor Abbott's past three appointments to the Supreme Court of Texas have not had any prior judicial service. The most recent nominee, Justice Kyle Hawkins, served as Texas Solicitor General and most recently was a partner at Lehotsky Keller Cohn. Justice James P. Sullivan, appointed in 2025, served as Governor Abbott's deputy counsel. Justice Evan Young, appointed in 2021, was a partner at Baker Botts. And Chief Justice Jimmy Blacklock, appointed in 2018 was appointed while serving as Governor Abbott's general counsel.

Then again, Governor Abbott's other three nominees from 2019 and 2020 all came from an appellate court in my hometown of Houston: Justices J. Brett Busby, Jane Bland, and Rebecca Huddle.

Why might a President, or Governor, prefer lawyers who are not judges? One possible reason is that lawyers get to pick their cases. By contrast, lower court judges can only decide the cases that come before them, and in most cases, are constrained by stare decisis. Their opinions are not a reflection of their personal views, but--or at least should--follow the law. Advocates, especially those who engage in strategic litigation, are differently situated. They can advocate for their bona fide conception of the law, and are not subject to the same constraints. In many regards, non-judicial experience may be the most useful metric for how a judge will decide cases. This dynamic may not always be the case, especially for lawyers in government service. There was a time when John Roberts signed a brief calling for Roe to be overturned, and we al know how Dobbs turned out. But on balance, the cases a lawyer takes, and the arguments he advances, is a useful predictor of judicial behavior.