As expected, Justice Stephen Breyer will retire this year. It was learned this week that he will leave the Supreme Court after his successor is confirmed, likely over the summer. (While the change could happen faster than that, it would result in some major cases being decided with just eight justices, so I doubt that will happen.)
During the presidential campaign, Joe Biden promised to appoint the first black woman to the Supreme Court, and everything indicates that he intends to fulfill this commitment. Biden was also not the first to make such a pledge. Ronald Reagan campaigned on a promise to appoint the first woman to the Court and fulfilled that commitment by appointing Sandra Day O’Connor.
Nominating a black woman to the Supreme Court would mark a significant milestone for the nation and be consistent with the Biden administration’s broader efforts to diversify the federal court system. There are several potential candidates who have the necessary qualifications and who would almost certainly be confirmed. (And, for the record, I adhere to my longstanding position that the Senate should confirm any candidate who has the required qualifications and character; elections have consequences.)
By making this appointment, 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 appointing someone with substantial experience in state courts.
The current judges are all extremely well educated and intelligent. All but one (Elena Kagan) came to the Court with significant appellate court experience, and she had experience with federal appellate courts as a Solicitor General. Only one sitting judge had been a trial judge (Sonia Sotomayor), and nothing of the current judges has significant experience in state courts. It’s not good.
Many Court cases arise from or directly affect state legal proceedings (including habeas cases), or incorporate claims of state law (as occurs in some sentencing cases and ACCA). Just as having a judge with trial court experience brings an important perspective to the room, so would having a judge who understands the reality of state court proceedings and how State courts may differ from their federal counterparts. Judges O’Connor and Souter had such experience, but none of the current judges have it.
It turns out that several qualified individuals who would be on President Biden’s shortlist have significant experience in state courts. I haven’t studied any of their records closely enough to know which would be the “best” from my point of view (and I’m quite sure the White House doesn’t care about my opinion). The point here is that this appointment 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 clearly lacking in the Court, such as trial-level criminal defense work, and this type of diversity is important for the how the Court does its job.
The White House has the right to appoint a lawyer with the president’s preferred judicial philosophy and who meets 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 also chose someone who brings state court experience to the court because such experience is lacking. at One First Street for some time.
UPDATE: Although neither has served as a state court judge, a reader reminded me that Judge Sotomayor worked as a prosecutor in the Manhattan District Attorney’s Office and Judge Thomas worked for the Missouri Attorney General’s Office, including in the Criminal Appeals Division. These experiences are important, but neither is the same as having worked as a state court judge.