Now that an opening looms on the Supreme Court of the United States, the thoughts of all who follow this blog turn to Justice Kennedy’s replacement. Regardless of what can be said about the qualifications of the various contenders for the seat, one aspect of the announced selection process is heartening. An unusually wide net is being cast.
Consider some of those who have sat on that Court in the recent past. Hugo Black came to the Court from the U.S. Senate. Earl Warren had served as a local district attorney, state Attorney General, and Governor of California. Byron White was a combat veteran and member of the College Football Hall of Fame who, before his appointment, was in private practice and then Deputy United States Attorney General. Thurgood Marshall had been Executive Director of the NAACP Legal Defense and Education Fund and an experienced Supreme Court litigator before being named United States Solicitor General. Sandra O’Connor was a rancher, Majority Leader of the Arizona Senate, and a state trial and appellate judge. Their law schools were, in order, Alabama, UC Berkeley, Yale, Howard, and Stanford.
In contrast to the varied backgrounds of these Justices, for many years now virtually the only path to the U.S. Supreme Court has been a legal education at Harvard or Yale, followed by a stint on a U.S. Circuit Court. Roberts—Harvard, D.C. Circuit. Kennedy—Harvard, Ninth Circuit. Thomas—Yale, D.C. Circuit. Breyer—Harvard, First Circuit. Alito—Yale, Third Circuit. Sotomayor—Yale, Second Circuit. Gorsuch—Harvard, Tenth Circuit. Only two deviate even slightly from this pattern. RBG attended Harvard Law before transferring to and graduating from Columbia, then served on the D.C. Circuit. Kagan, a Harvard Law graduate, served as U.S. Solicitor General before her appointment. I wonder if she feels left out when her colleagues swap circuit court stories during the Court’s conferences.
While those who fit the Ivy League law school/U.S. Circuit Court description are unquestionably learned, they have not necessarily experienced the rough and tumble of a legal practice and the daily life of ordinary folks. As Speaker of the U.S. House of Representatives Sam Rayburn reportedly said to then-Vice President Lyndon Johnson about President Kennedy’s Cabinet, “[T]hey may be every bit as intelligent as you say, but I’d feel a whole lot better about them if just one of them had run for sheriff once.”
As of this writing, the White House has issued a list of twenty-five potential candidates for the opening (rumors suggest that the list has been further narrowed). It was nice to see several state judges and even a U.S. Senator on the list. There’s a lot of untapped talent available off the current beaten path. It has been my good fortune both as a former justice and as a member of the ABA’s Appellate Judges Conference to meet many state judges and justices who are fully qualified by education and experience to sit on the U.S. Supreme Court. They deserve consideration; the country deserves to have them considered.
Finally, I got a grin out of a recent article in the Wall Street Journal reporting a meeting the President held with senators from both parties about the opening. A White House spokesman reported “[T]his is where the confirmation is made or broken—the folks who were in the room last night.” Hamilton strikes again!
P.S. Duane Jones pointed out to me that Whizzer White was in the College and not the Professional Football Hall of Fame. Good catch, Duane. I also see that the President decided to stick with the Yale/D.C. Circuit pattern.