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December 23, 2006

Saturday SCOTUS trivia

Regular readers may recall that, when Supreme Court vacancies were all the vogue, I was asking here whether what SCOTUS really needs is a trial judge.  At that time, Orin Kerr noted that Charles Whittaker was on the district court for two years in the mid 1950s, then on the Eighth Circuit briefly before serving on the Supreme Court for from 1957 to 1962.

I still find it remarkable that we've now gone nearly half a century without a Justice with any federal district court experience.  Moreover, at a law-geek lunch yesterday, the question came up whether any Justice had ever been elevated to the Supreme Court directly from a federal district judgeship.  Anyone know the answer? 

December 23, 2006 at 10:24 AM | Permalink


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Off the top of my head, I can't think of anyone.

It may be worth noting, though, that Justice Souter has 5 years' worth of experience as a trial judge on the Superior Court in New Hampshire from 1978 to 1983. From http://www.supremecourthistory.org/myweb/justice/souter.htm:

n 1978, after two years as attorney general, Souter was appointed associate justice of the New Hampshire Superior Court, the state's trial court of general jurisdiction. The justices of the superior court do not have chambers or a courtroom in any particular county; rather, they travel from county to county trying cases. Thus, during his service on this court, Souter "rode the circuit" of New Hampshire's ten counties, presiding in the courthouses of Berlin, Laconia, Dover, Keene, Manchester, and Concord. As Souter later described it, he presided over every type of case imaginable and "saw every sort and condition of the people of my State that a trial court of general jurisdiction is exposed to. I saw litigants in international commercial litigation for millions, and I saw children who were the unwitting victims of domestic disputes and custody fights."

A substantial number of cases over which Souter presided were criminal prosecutions, and he acquired a reputation as a tough but fair judge with criminal defendants. A former public defender in New Hampshire who tried numerous cases before Souter has stated, "He was an excellent trial judge, although he was the kind of judge you knew was really going to hammer people at sentencing." Souter developed a keen interest in and respect for the jury system. He had a practice of meeting with the members of the jury after a case to discuss their participation in the legal system. One lawyer who appeared frequently before Souter observed that, as a result of his solicitous treatment, "juries loved him."

Looking back on his service as a trial judge, Souter believes he learned two important lessons about judging that remain with him. First, "whether we are on a trial court or an appellate court, at the end of our task some human being is going to be affected." Second, "if, indeed, we are going to be trial judges, whose rulings will affect the lives of other people and who are going to change their lives by what we do, we had better use every power of our minds and our hearts and our beings to get those rulings right."

Posted by: Orin Kerr | Dec 23, 2006 3:49:35 PM

Oops, I just saw in the link above that you cover this. Nevermind.

Posted by: Orin Kerr | Dec 23, 2006 4:00:11 PM

Searching Google for
site:www.fjc.gov "Judge, U.S. District Court" "Justice, Supreme Court of the United States" nominated "Judges of the United States Courts"

led to these 3 Justices:
Henry Brown, http://www.fjc.gov/servlet/tGetInfo?jid=284
Philip Barbour, http://www.fjc.gov/servlet/tGetInfo?jid=91
Robert Trimble, http://www.fjc.gov/servlet/tGetInfo?jid=2413

I agree with you that a good district judge would be an ideal nominee. If a dem gets elected, it would probably have to be one of his or her initial nominees, as most Clinton's are probably getting into their 60s.

Posted by: Law Clerk | Dec 23, 2006 4:46:20 PM

It certainly would be refreshing to have POTUS appoint a trial judge. He/she would not necessarily have to be from the federal bench, but it would certainly be nice to have someone on the bench who deals day-to-day with issues of dicovery, calendars, the rules of evidence, and the practicalities of the law. This might lead to decisions that go the extra mile and deal with issues not precisely before the bar so as to avoid confusion and conflicting opinions later on.

Posted by: Bernie Kleinman | Dec 23, 2006 11:55:17 PM

Is there anyone out there that has already garnered some attention from the DCt level to be elevated that far up, that fast???

The only DCt Judge that I can remember generating any attention from the academics is Judge Cassell from Utah who had some significant discussions in opinions post-Booker early on. He has an academic background and took on the task of publishing opinions from his level - which is quite a bit of work.

Who would be other nominations?

Posted by: Prawf Deuce | Dec 26, 2006 11:53:33 AM

Prawf Deuce - I would think Myron Thompson (M.D.Ala) would have been given serious consideration in a Gore or Kerry administration. He may end up being too old the next time a democrat is in office.

Posted by: an attorney | Dec 26, 2006 11:11:16 PM

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