July 19, 2005
Does SCOTUS need a trial judge?
As I noted in this post, Professor Bill Stuntz's latest fascinating Supreme Court commentary at The New Republic Online got me to thinking about the possible virtues and potential impact of a replacement for Justice O'Connor who has some direct experience as a sentencing judge. In turn, my mind wandered to the more basic question of Supreme Court Justices with experience as a trial court judge. Notably, Justice O'Connor from 1975 until 1979 served as a judge of the Maricopa County (Az.) Superior Court, but I believe no other member of the current Court has any experience as a state or federal trial judge.
[CORRECTION: An astute reader noted that Justice Souter also has state trial court experience as a New Hampshire Superior Court Judge from 1978 to 1983 before he became a New Hampshire Supreme Court Justice. I should have read the Justices' bios more closely.]
Though this is perhaps a question I should just direct to the folks at SCOTUSblog or Howard at How Appealing, I wonder if any of my readers know who was the last US Supreme Court Justice who served as a federal district judge. I think it is reasonable to contend that one reason modern SCOTUS opinions tend to be so fractured and doctrinally opaque — think Booker! — is because no recent Justices have had the experience of trying to apply such fractured and doctrinally opaque rulings at the federal district court level.
Interestingly, among the many "short list" names of possible O'Connor replacements often repeated in the press, I believe only Judges Clement and Garza have any federal trial court experience. According to the bios at SCONo, Judge Clement was a judge on the US District Court for the Eastern District of Louisiana from 1991 to 2001, and Judge Garza was a federal district court judge for the US District Court for the Western District of Texas from 1988 to 1991 and a state district court judge for the district of Bexar County, Texas from 1987 to 1988. Considering only judicial perspective, and not politics, I wonder if Judges Clement and Garza should be at the top of the short list.
UPDATE: Interestingly, today's SCOTUS buzz, as detailed in this AP article, is all around Edith Clement. I wonder what her reputation was as a sentencing judge during the 10 years she served on the federal district court.
July 19, 2005 at 09:37 AM | Permalink
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Tracked on Jul 19, 2005 11:01:54 AM
I'm not sure I agree that the lack of trial judge experience explains any fractured or opaque opinions by the Justices. But I was also wondering about which Justice most recently served as a federal district judge. My vague recollection is that the answer is Charles Whittaker, who was on the district court for two years in the mid 1950s, then on the 8th Circuit for one, and then on the Supreme Court for from 1957 to 1962.
Was there anyone else after him?
Posted by: Orin Kerr | Jul 19, 2005 11:21:56 AM
Orin, thanks for the info. Amazing to think that what might make Edith Clement a remarkable selection is that she could be the first Justice with federal district court experience in nearly half a century.
On the fractured/opaque issue, I had clerking experience with one circuit judge who had served on the district court and one who hadn't. I found that the circuit judge with the district court experience was more focused on how big rulings would impact district court work. I do not mean to suggest this is a primary factor impacting the Court's work, but it may be a contributing one.
Posted by: Doug B. | Jul 19, 2005 11:34:33 AM
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