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Must U.S. Supreme Court Nominees First Serve on Federal Courts of Appeals?
The Case of Janice Rogers Brown


Thursday, Jul. 31, 2003

Last week, the White House announced that President Bush plans to nominate Janice Rogers Brown to the U.S. Court of Appeals for the D.C. Circuit. Brown is now an Associate Justice of the California Supreme Court.

Brown is also a favorite of many far-right conservatives, both inside and outside the Bush administration. Accordingly, speculation is growing that the President is positioning her for a seat on the U.S. Supreme Court.

I won't discuss here the merits of Justice Brown's nomination. Rather, I'll address an assumption possibly underlying it - that service on a federal appellate court significantly enhances a state judge's candidacy for a seat on the Supreme Court.

Assume that, as many believe, President Bush is such an admirer of Brown that he thinks he may want to nominate her to the Supreme Court one day. If so, should he - and the Senate, which holds the power to confirm her - consider it important that she first serve on a federal court of appeals? Or is Justice Brown's California high court service sufficient to allow her to be directly nominated to the nation's highest court?

State Judges' Service on the U.S. Supreme Court Has Become Rare

Many of the Court's most distinguished Justices - including Oliver Wendell Holmes, Benjamin Cardozo, and William Brennan, to name just a few - came directly from positions on state high courts. But of current justices, only Sandra Day O'Connor was selected directly from a state court.

Justice David Souter spent many distinguished years on the New Hampshire Supreme Court. But his path to the U.S. Supreme Court was the same one President Bush may be considering for Brown: He spent a few months on the U.S. Court of Appeals for the First Circuit before being elevated to the Supreme Court.

Including Justice Souter, seven current Justices came to the Court from the federal appellate courts. Three (Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg) served on the D.C. Circuit, as Brown will if confirmed.

Clearly, the federal courts of appeals have become the proving ground of choice for Presidents looking to fill seats on the Supreme Court. But why?

Do federal appellate judges receive better training for the U.S. Supreme Court? One might suspect that the Supreme Court has more in common with the lower federal courts than with state high courts, and thus that federal appellate judges are better prepared to join the Court. But there is little basis for this view.

Consider the kinds of cases the U.S. Supreme Court hears. Its most visible cases tend to involve constitutional issues. Federal courts of appeals also review many constitutional questions. But so do state supreme courts.

Indeed, during the Supreme Court's 2002-03 Term alone, many of the most significant constitutional cases came to the Court from state supreme courts, not federal appellate courts. Several came from the California state courts, where Justice Brown now serves.

One, Ewing v. California, raised an Eighth Amendment challenge to California's "three strikes" law. Another, Stogner v. California, involved an ex post facto challenge to a California law reviving previously time-barred prosecutions of alleged child molesters. The third, Nike v. Kasky, was a First Amendment challenge brought by Nike, involving complicated questions about so-called "commercial speech." (The Supreme Court did not resolve the Nike case, but rather sent it back to the California courts without decision.)

Another important category of the Supreme Court's work involves the interpretation of federal statutes. Admittedly, federal appellate courts tend to interpret federal statutes more frequently than state supreme courts do; invoking a federal statute typically provides an automatic entree to federal court.

But statutory interpretation, conceived more broadly, is hardly the exclusive province of federal judges. State judges frequently interpret state statutes (many of which are patterned on federal enactments), and the interpretive process is essentially the same. Accordingly, if a President is impressed with a state judge's demonstrated ability to interpret state statutes, there is no reason to think she would be less adept at federal statutory interpretation.

In short, there is little substantive reason to think that state appellate judges are necessarily less well prepared than their federal counterparts to serve on the U.S. Supreme Court.

Moreover, the Court would arguably be better served if more of its members had experience serving on a state court. As mentioned, the Court receives many of its cases from state courts; a justice who had served on such a court could potentially provide a useful perspective on those cases.

Political Tactics May Explain Justice Brown's D.C. Circuit Stopover

The answer might be politics. An African-American with a seemingly extremely conservative record on hot-button topics like affirmative action, Brown is a potentially controversial nominee. The D.C. Circuit nomination thus may be a way to draw the sting out of any opposition, allowing objections to her nomination to be flushed out in a lower-stakes context.

If the President can push Brown's D.C. Circuit nomination through the Senate, he will very likely be able to leverage that success into later confirmation to the Supreme Courts. Having confirmed Brown to the D.C. Circuit, senators leery about elevating her to the Supreme Court would have the burden of justifying a departure from their earlier position.

On the other hand, senators with misgivings about Justice Brown may protect against this risk by treating her nomination to the D.C. Circuit as the effective equivalent of a Supreme Court nomination. Indeed, Senate Democrats have already proven their willingness to block even lower court nominees they deem to be too far outside the judicial mainstream.

Again, I take no position here on whether Brown should be confirmed. But if President Bush wants to nominate her to the Supreme Court, he need not treat D.C. Circuit service as a prerequisite. Provided the judge in question has the necessary ability, industry, and wisdom, service on a state high court ought to suffice.

Trevor Morrison is an Assistant Professor of Law at Cornell Law School.

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